Opinion The abortion right need not pit the woman against the foetus

But since then, foetal interests have crept into judicial decision-making on abortion in India. In 2016, the Punjab and Haryana High Court claimed that once the pregnancy is viable, the “potential child” becomes a part of the determination. The Calcutta High Court in 2019 said that at an advanced stage of pregnancy “the right to life of the foetus outweighs the mental trauma” suffered by the mother. The Rajasthan High Court in 2019 rejected a termination request at 20 weeks on hearing “the voice of the unheard foetus… a human being which too is alive, though yet to be born.” The decision was later set aside. In 2022, a petition was filed before the Supreme Court claiming that India’s abortion law authorises “foeticide”. Last week, the Supreme Court, in a split two-judge bench decision, declined to allow abortion at 26 weeks, with one judge remarking “which court will stop foetal heartbeat?” This week, a three-judge bench, set up to settle the issue, refused the abortion because they could not “stop the heartbeat”.

This, however, exists alongside a completely parallel track of jurisprudence, one affirming the constitutional rights of pregnant women. This includes the rights to make intimate and personal decisions, especially when they involve one’s body. The rights are expressed in strong, positive language: “It is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion” (Supreme Court, 2022). It seems to make clear that the woman is the sole determinant in the abortion decision. The foetus makes no appearance.

This state of jurisprudence is confusing. The two parallel tracks do not, for the most part, converse with one another. Of course, rights are rarely absolute, and are typically subject to limitations of some nature. However, whether these limitations do exist (and should exist) for the abortion right is unclear. Even the Supreme Court’s landmark X v NCT in 2022, which ensured to all pregnant women the right to “choose the course of their lives”, makes no mention of the foetus. Last week, while Justice Hima Kohli refused to take a “precious foetal life”, Justice BV Nagarathna pledged to “respect” the woman’s decision. Where is the woman in Justice Kohli’s determination? And where is the foetus — if a relevant factor in the first place — in Justice Nagarathna’s?

Incoherence is, however, the least of the law’s problems. The parallel-track jurisprudence has more insidious effects. It reduces the force of the courts’ guarantees on women’s rights. If the guarantees — which sound far-reaching at the level of principle — are routinely cut down in practice, calling women the “ultimate decision-makers” on abortion ceases to have real effect. It also points to the gradual and almost surreptitious creep of foetal interests in India. The issue raises hard questions. Is the foetus a relevant factor in abortion regulation in India? Should it be? Does the foetus have a right to life? If not, what other interests worthy of protection does it have? Should the law (and the Constitution) preserve these interests, and if so, how, in light of women’s rights? These questions require explicit determination, instead of answers being slipped into the law. Yes, the legislature has proposed an answer, through the MTP Act. However, as the Supreme Court said this week, “it is for courts to see if the balancing act is correct or not”.

Inclusion of the foetus as a factor need not mean the end of liberal abortion laws. One can look to recent decisions from South Korea and Colombia — both acknowledged the importance of foetal interests as a constitutional value (a form of life, even) while also deciding to make abortion law more liberal. They recognised that restricting abortion (through criminalising it) did not really protect the foetus. It simply pushed women to seek unsafe abortions and harmed their health. Better alternatives to protect foetuses exist, which, in the first place, support women in their pregnancies. These include sex education, access to temporary contraception, reducing violence against women, and providing forms of childcare support, which cut down the overall rate of abortions.

Constitutional analysis of this nature is not alien to India. India’s proportionality test, which asks whether a law is “suitable” to achieve its aim, and “necessary” to get there, follows a similar pattern of reasoning. India, then, has a difficult task cut out for it — to bring the parallel tracks into conversation, set the terms of the debate, and arrive at reasoned answers. It is high time.

The writer is Assistant Professor of Law, National Law School of India University, Bengaluru