There has been a gradual backsliding of abortion rights in India and despite the highest court employing progressive language in its judgment, their import leaves much to be desired.
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THERE has been a significant shift in judicial attitude towards abortion cases where the pregnancy is of more than a few weeks.
In my previous pieces for this magazine and for the Indian Express, I have shown how there has been significant backsliding of abortion rights in India, despite there being a supposedly liberal judiciary.
The recent case of A (Mother of X) versus State of Maharashtra has had a few positive and a few negative implications. It uses the term “pregnant person”, for which it is being criticised for being ‘too woke’. While the belated upgradation of terminology is indeed a welcome change, we must ask other questions: Is the wokeness being translated into actually moving the needle in favour of abortion rights of pregnant persons, or is the inclusive language the sole thing that the judgment moves the needle on?
Let us look at the case here. The petitioner was the mother of a minor who was pregnant on account of being raped. A first information report (FIR) of offences punishable under Section 376 of the Indian Penal Code 1860 and Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 was lodged.
There has been significant backsliding of abortion rights in India, despite there being a supposedly liberal judiciary.
The high court had declined the plea for termination of pregnancy and the matter was in appeal before a three-judge Bench of the Supreme Court consisting of the Chief Justice of India, Dr D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra.
On April 19, the Bench sat at 5:15 p.m. after having risen, in the post-court hours and issued notice. In the Order issuing notice, the Bench noted that the medical board had not analysed the physical and mental status of the minor.
Sion Hospital was directed to constitute a fresh medical board and opined as follows:
Q 1: Whether carrying the pregnancy to full term would impact the physical and mental well-being of the minor who is barely 14 years?
Also read: A disturbing judicial trend to inhibit access to abortion services in India
Answer: Yes, the continuation of pregnancy against her will may negatively impact the physical and mental well-being of the minor who is barely 14 years old.
Q 2: The medical board shall also opine whether termination of pregnancy can be carried out at this stage without any threat to the life of the minor.
Answer: Yes, termination can be carried out at this stage. The threat of life to the patient if termination of pregnancy is carried out at this stage is not higher than the risk of delivery at full term of pregnancy.
Also in view of the minor being barely 14 years old, the chances of surgical intervention (abdominal surgery) at term or now may be there.
After this, the opinion was forwarded with the following note: “The committee has opined that the medical termination of the pregnancy can be done with due risk and with appropriate counselling of the patient and the relatives.”
Herein lies the first discrepancy: why were the relatives sought to be counselled. Surely, a minor who is 15 could have made a choice for herself.
The following factors weighed in with the Supreme Court while allowing for the termination of pregnancy:
- The medical termination of pregnancy is sought in respect of a minor who is 14 years old.
- The pregnancy is alleged to be an emanation from a sexual assault which has resulted in the registration of an FIR. The FIR was recorded on March 20, 2024 beyond the period of 24 weeks envisaged in the Medical Termination of Pregnancy Act, 1971.
- The minor was unaware of the fact that she was pregnant until the very late stage.
- The medical board at Sion Hospital has clearly opined that the continuation of the pregnancy against the will of the minor “may impact negatively the physical and mental well-being of the minor who is barely 14 years old”.
- While a certain degree of risk is involved in every procedure for medical termination, the medical board has opined that the threat to the life of the patient, if termination of pregnancy is carried out at this stage, is not higher than the risk of delivery at full term of pregnancy.
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While allowing the termination on April 22, 2024, the Supreme Court set aside the judgment of the high court and directed the following:
- The Dean at Sion Hospital is requested to immediately constitute a team for undertaking the medical termination of the pregnancy of the minor in respect of whom the medical board has submitted its report dated April 20, 2024.
- Arrangements shall be made by the State for transportation of the minor to the hospital and for her return home after the completion of the procedure.
- The State has agreed to bear all the expenses in connection with the procedure and all medical expenses required in the interest of the safety and welfare of the minor.
- Post-termination, if any further medical care is required, this may be ensured in the interest of the minor.
In a strange occurrence, the Dean of Sion Hospital on April 26, 2024 wrote to the Additional Solicitor General, Ms Aishwarya Bhati, claiming that the minor girl’s mother was changing her stance repeatedly.
Supreme Court’s use of the term “pregnant person” is being criticised for being ‘too woke’.
Note here that the minor girl’s wishes are not considered in the communication of the dean. While interacting with the court, the minor’s parents told the court that the doctors had been silent on the risk posed to the minor herself.
Herein lies the second problem: Why did the doctors not communicate to the patient and her parents the risks effectively?
Why is the discussion so centered around the minor’s parents, while being strangely silent around the minor herself? These questions perhaps will remain unanswered.
Subsequently, the court recalled the earlier Order.
As Muskan Tibrewala noted in a piece for this magazine, “Legal access to abortion services in India is more progressive when compared to countries such as the United States, but these judgments reflect a disturbing trend and the urgent need for courts to center respect for bodily autonomy and the choice of a pregnant person in access to abortion services.”
In their piece, showing how courts have allowed medical terminations to go through at 33 and 35 weeks also, Tibrewala demonstrates certain patterns that have evolved.
In the many notable abortion cases that have come to the Supreme Court in recent times, and with the benefit of hindsight, I think the trends are perhaps more clear:
- First, the Supreme Court passes an Order allowing for the medical termination of pregnancy and directs the hospital to form a medical board for the same.
- Doctor(s) who are a part of the medical board for performing the medical termination ask for directions to stop the heartbeat after inducing delivery instead of doing it prior to inducing the delivery.
- Emails are written to the Additional Solicitor General seeking further directions from the court in terms of the above.
- When the matter is taken up after the second time, the same Bench which had first allowed the abortion, recalls the previous Order and directs that the pregnancy be carried to term.
But the court has also tried to stop the backsliding: whether it is successful or not is something that only time will tell.
Surely, a minor who is 15 could have made a choice for herself.
Let us see what the court has done.
First, the court has held that a medical board must opine on the health, both physical and mental, while giving its recommendation.
The court has now also explicitly held that the high court cannot refuse an abortion merely because the gestational age is higher than the prescribed statutory limit. Instead, the court must apply its independent mind to the opinion of the board, and then come to a conclusion on whether or not to allow an abortion.
It is also noted in the judgment that the medical board cannot change its opinion unless it provides cogent reasoning for doing so, and must also issue reasons for issuing clarification.
The Supreme Court, in a welcome development, has also noted that the change of the medical board must not frustrate the rights of pregnant persons.
The Supreme Court, in a welcome development, has also noted that the change of the board must not frustrate the rights of pregnant persons.
The decision, in my opinion, remains a mixed bag. Posterity will be the judge of whether this is enough for not. Until then, we must let hope gestate, and terminate the doubts.
