On abortion, Supreme Court places the woman at the centre

The Supreme Court’s insistence that an unwanted pregnancy cannot be imposed — least of all upon a minor — and its dismissal of a curative plea filed by the All India Institute of Medical Sciences contesting the Court’s decision to allow a 15-year-old rape survivor to terminate her 30-week pregnancy, is a welcome reaffirmation of reproductive autonomy as a fundamental right grounded in dignity and bodily integrity. The apex court’s framing of the issue — “unwanted pregnancies cannot be burdened on the woman”, and the state must “respect a citizen’s autonomy of choice” — comes at a time when abortion is increasingly being framed as a choice between competing lives, not just in India but globally. It signals that constitutional guarantees cannot be diluted by medical paternalism.

The Medical Termination of Pregnancy (MTP) Act of 1971 was, for its time, a forward-looking statute that recognised the perils of unsafe, clandestine abortions, even if it remained contingent on the consent of doctors, partners and family members. Its 2021 amendment expanded gestational limits for certain categories of vulnerable women and gave greater primacy to privacy and choice. The landmark X v. Principal Secretary, Health and Family Welfare Dept (2022) verdict broadened the categories of women who fall within the Act’s ambit. Yet, in recent years, this trajectory has been complicated by an increasing contestation over foetal viability, exposing tensions within a law that is still structured as an exception to criminality and still framed as conditional permission rather than an enforceable right. In October 2023, a Supreme Court bench declined to permit the termination of a 26-week pregnancy, effectively privileging foetal viability over the woman’s choice. Since then, several high courts have moved in the same direction. In February 2024, a 32-week pregnant widow’s plea for an abortion was also denied by the apex court on similar grounds despite compelling claims of mental distress.

In urging Parliament to revisit the statutory framework — particularly to remove gestational limits in cases involving minor survivors of rape — and in emphasising that the law must evolve to prioritise dignity, the CJI-led bench has given the issue a consequential turn. A rights-based legislative framework — one in which reproductive autonomy is the presumption and medical oversight serves as a safeguard — will not resolve every complexity. But clear statutory standards can guide doctors without displacing the primacy of the patient’s informed decision, while time-bound procedures can prevent the delays that turn choices into crises. None of this will eliminate the ethical difficulty of late-term terminations, nor should it pretend to. But it would ensure that the weight of such decisions is not made heavier by the law itself.