Impacting a woman’s freedom to reproductive choices Premium

There is no place within India’s constitutional structure to see a foetus as anything but dependent on the mother’

On October 16, in X vs Union of India, the Supreme Court of India declined permission to a woman who was seeking to terminate a 26 week-long pregnancy. A Bench presided over by the Chief Justice of India (CJI), D.Y. Chandrachud, held that the woman’s case fell outside the scope of the Medical Termination of Pregnancy (MTP) Act, 1971

The Court said the statute permitted the termination of pregnancy beyond 24 weeks only in cases where the foetus exhibited substantial abnormality, or where the woman’s life was under direct threat. Here, since doctors would have to terminate a “viable foetus”, the Court rejected the plea to exercise its extraordinary powers.

The judgment falls short of bestowing any explicit rights to the unborn. But the upshot of its conclusion is just that: when a foetus becomes viable, and is capable of surviving outside the mother’s uterus, the woman’s right to choose stands extinguished, barring circumstances where the specific conditions outlined in the MTP Act are met.

In so holding, the judgment suffers from at least two errors. The first stems from the Court’s failure to ask itself what ought to be seen as central questions to resolving the dispute: Does a foetus enjoy an autonomous moral status? Does it have legal standing? Is it capable of exercising constitutional rights? The judgment does not engage with these questions and, as a result, places the rights of a foetus at a pedestal, above that of the rights of a pregnant woman to her privacy and dignity.

Second, the Court fails to examine whether the MTP Act is merely an enabling legislation. Does the statute facilitate the exercise of a fundamental right? Or, do its exemptions constitute a conferral of rights in and by themselves? Had these questions been posed and answered, the Court may well have considered whether a woman ought to be allowed to terminate her pregnancy outside the terms spelled out in the legislation. If the right to freely make reproductive choices is fundamental, flowing from the Constitution, the Court ought to scarcely feel injuncted from issuing directions beyond the MTP Act’s remit.

Consider the facts. The petitioner, a 27-year-old married woman, X, with two children, the youngest barely a year old, wants her pregnancy terminated. She became aware of her pregnancy only 20 weeks in, as she had lactational amenorrhea — a condition in which women who are breastfeeding are also amenorrhoeic, that is not menstruating. The petitioner submitted before the Court that when she ultimately underwent an ultrasound scan (owing to symptoms of nausea and abdominal discomfort), she was found to be 24 weeks pregnant.

X made two chief pleas: one, she submitted, that she was suffering from post-partum depression and her mental condition did not allow her to raise another child; and two, her husband, she said, was the only earning member of the family and they could ill-afford to care for a third child.