Opinion Denied abortion of 27-week-foetus: In India, reproductive autonomy remains a pipedream

What appears to have triggered the appeal to “conscience” as well as much of the sensationalist attention that this case has received, is the evocatively interchangeable use of the terms “foetus”, “child” and “baby”, given the advanced stage of pregnancy and questions of “viability” of life at that stage. Moreover, at this stage, the mode of termination was likely to be preterm birth with or without intervening with the foetal heart rate and, hence, concerns around “foeticide” were highlighted by the doctor who sought clarification. The way she elaborately described the details of the medical procedures that must be resorted to and repeatedly referred to the foetus in question as “baby”, it is clear that there was a latent personal discomfort as well as over-caution regarding the termination process, possible preterm birth and aftercare. Yet, Justice Nagarathna emphasised the “primacy [that] must be given […] by all concerned including courts of law” to the petitioner’s decision to terminate. She cited Justice D Y Chandrachud’s observation in the 2022 Ms X case that “every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party” in her ruling, underscoring reproductive autonomy. In the judgment, however, the bench headed by the CJI has not paid heed to this aspect.

In 2021, the MTP Act, 1971 was amended to raise the permissible limit of gestational duration from 20 to 24 weeks. It further instituted provisions for the constitution of Medical Boards whose powers were delineated in the Rules to streamline considerations for requests to terminate a pregnancy beyond 24 weeks. This amendment sought to address the fact that petitioners had routinely approached the courts for permission beyond the upper gestational limit prescribed in the law, and there has been sufficient evidence to demonstrate that such a revision could be reasonably reflected in the law. Even when the present case isn’t the first such plea seeking termination beyond the revised permissible limit after the amendment, it is one that pushed the limits of ethical considerations for abortion that is fraught with globally discernible “pro-choice” and “pro-life” polarisations.

This petitioner did not approach the court from a position of victimhood, rather that of a citizen with agency. Her pregnancy has been conceived within the socially sanctioned ambit of heterosexual marriage, she is battling postpartum psychosis but is not “of unsound mind”. There seem to be no foetal anomalies, but she has foregrounded her unwillingness to have another child irrespective. In her affidavit, she categorically stated that she doesn’t “want to keep the baby even if survives. The government can take care of the baby in case it survives and can even give it in adoption or whatever it deems suitable” (sic). In this sense, she articulated her request as a matter of right, to exercise a reproductive choice, and seeking support from the State for safe abortion services. All of which India has endorsed in the 1994 Cairo Declaration on Population and Development and reasserts in principle and as commitments in its laws and policies. Given the pitting of a debatably “viable life” against her individual bodily autonomy, she held her ground, challenging notions of sacrificial womanhood. Unfortunately, there seems to be agony and disappointment for women at the end of the mazes they navigate to seek ever elusive reproductive autonomy. Despite avowed goals of “empowerment”, is it a foregone conclusion that women are not to stake claims on their own bodies, on their own terms? The answer is blowing in the wind.

The writer is assistant professor, Department of Political Science, School of Social Sciences, University of Hyderabad