Guest Post: Two Courts, Two Conclusions: Abortion Law in India

[This is a guest post by Gauri Pillai.]

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On 15 July 2022, the Delhi High Court, in Ms X v The Principal Secretary of Health and Family Welfare Department Government of NCT of Delhi (‘Ms X’), denied an unmarried woman permission to terminate her unwanted pregnancy at 23 weeks under Section 3 of the Medical Termination of Pregnancy Act, 1971. A week later, through an ad-interim order, the Supreme Court allowed the woman’s appeal against the Delhi High Court’s order, permitting termination as long as a Medical Board confirms that abortion is medically safe for the pregnant woman. In this post, I discuss both these orders, which differ not just in their outcomes but also their reading of the law, and the factors they take into account in decision-making. But first, I briefly set out the legislative framework governing abortion in India.

Legal Background

The legal regulation of abortion in India began with criminalisation. The Indian Penal Code 1860 (‘IPC’) declared criminal voluntarily causing a woman with child to miscarry, unless done in good faith for saving the life of the woman. It brought within the scope of the law both the person causing the miscarriage, and the woman herself. Predictably, criminalisation did not eliminate the need for abortions and only compelled women to seek abortions in unsafe settings from unskilled practitioners, causing death. To quell the rising mortality rate, the State introduced the Medical Termination of Pregnancy Act (‘MTPA’) in 1971, conditionally legalising certain categories of abortions, and exempting them from criminal sanction.

The MTPA allows termination up to an outer limit of 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the foetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped. The 1971 Act was amended in April 2021. As per the amended law, the limit of 20 weeks has been extended to 24 weeks—as long as the above conditions are met—for certain categories of women, as specified in the Medical Termination of Pregnancy Rules 2003, amended in October 2021. Rule 3B lists the following categories: (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government. An assessment as to whether the conditions specified are met is carried out by one medical professional for termination before 20 weeks and two medical professionals for termination between 20 and 24 weeks.

Inclusion of Unmarried Women

An immediate question before both the Delhi High Court and the Supreme Court in Ms X was whether an unmarried woman with a unwanted pregnancy at 23 weeks fell within the ambit of Rule 3B. The Delhi High Court adopted a literal interpretation, holding that since the rule did explicitly not specify unmarried women (unlike, say, widows or divorcees), it did not extend to the petitioner. The Supreme Court, in contrast, deviated from this ‘unduly restrictive’ interpretation, and adopted a purposive reading of the MTPA, making four crucial observations.

First, the Court held that the listed categories of widows and divorcees were simply illustrative of the broader category of change in marital status; they did not exhaust it. This implied that other instances of change in relationship status would also fall within the ambit of the rule. In this case, the petitioner, who was in a consensual relationship, sought termination because she was deserted by her partner: in other words, she decided to terminate her pregnancy due to a change in relationship status, accounted for by Rule 3B. Second, the Court noted that the 2021 amendment to the MTPA modified Section 3 to extend it to unmarried women. Section 3 states that a grave injury to mental health justifying termination can be presumed if pregnancy is on account of failure of contraception. While the 1971 Act saw such failure of contraception as occurring only between a ‘ married woman and her husband’, the 2021 Amendments extend it to ‘any woman and her partner’. This, the Court held, clearly indicated legislative intent to bring pregnancies outside marriage within the reach of the MTPA. Third, the Court observed that the MTPA recognises the ‘reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child’. In light of this underlying purpose, denying the petitioner the choice of termination simply because she is unmarried, the Court remarked, would be at odds with the spirit of the MTPA. Finally, the Court held that live-in relationships have previously been recognised by the Supreme Court, which has refused to impose subjective notions of social mortality through the law to ‘unduly interfere with the domain of personal autonomy’. Drawing the four arguments together, the Supreme Court allowed the unmarried petitioner to terminate her unwanted pregnancy.

This is certainly a crucial development in Indian abortion law. The exclusion of unmarried women from Rule 3B speaks to the law’s questionable elevation of marriage as the only form of relationship that deserves legal recognition, on the basis of which certain groups of women are denied an essential form of healthcare (access to abortion). The exclusion also cements the patriarchal assumption that women ought to express their sexuality only within the institution of marriage. Women who experience a change in marital status (on account of death of their partner or divorce) are thus seen as deserving of the law’s sympathy, while women who engage in sex outside of a marital relationship are punished through withholding their right to access an abortion. In reading Rule 3B and Section 3 to include unmarried women, the Supreme Court rightly refuses to perpetuate these assumptions.

Ignoring the Body

Beyond the Delhi High Court’s restrictive reading of Rule 3B, the High Court also shockingly minimised—to the extent of ignoring—the bodily impact of pregnancy. During the hearing the Court told the petitioner that ‘hardly 12 weeks’ were left to carry the pregnancy to term, after which she could give up the child for adoption. When the petitioner remained firm in her decision to terminate the pregnancy, the Court responded by offering to pay for childbirth in a good hospital. All the petitioner then had to do, the Court’s observations implied, was to carry the pregnancy to term for the remaining 12 weeks. Is that not a reasonable ask, the Court appeared to entreat, to ensure that the foetus survives? In refusing termination, the Court in essence concluded that it was, indeed, a reasonable ask.

However, in arriving at this conclusion, the Court completely disregarded the impact of an unwanted pregnancy on the body of the pregnant women. Pregnancy involves ‘all the body systems, displacing body parts, depleting the body of its necessary elements and changing its chemical balance’. As has been noted within the literature, it increases blood volume by 50%, stroke volume of the heart by 35% and renal function by 50-60%. It decreases lung volume by 20% and the respiratory rate by 15% (2-3 breaths per minute). The pituitary gland enlarges 135% and the production of growth hormones increases dramatically. A whole new organ, the placenta, is generated by the body. The excess progesterone produced by the placenta can cause fluid retention, increase in blood pressure, weight gain and inability to sleep. The size and position of the heart and the uterus change, the latter displacing and compressing other organs in the gastro-intestinal tract. The resulting pressure may affect the circulation of blood, sometimes causing irreversible varicose veins, haemorrhoids and disabling thrombophlebitis. The interference with the gastro-intestinal tract can also cause constipation. The displacement of the urinary tract can result in urinary tract infections. The weight of the uterus can create sacroiliac strain, backache and pressure on the cervical spine, potentially resulting in numbness, tingling, and proprioceptive acuity reduction in the hands. Metabolically, the pregnant woman is in an accelerated stage of starvation due to the nutritional demands of a growing foetus. Increase in oestrogen levels can cause nausea and vomiting in the first four months, resulting in dehydration, extreme fatigue, headaches, confusion, fainting, low blood pressure, rapid heart rate, and anxiety or depression. Childbirth frequently damages the pelvic organs which might then require corrective surgery. Bladder control may be permanently lost.

Notably, these are the biological indications of a medically ‘normal’ pregnancy. Complications during pregnancy could result in a worsening of these conditions or an exacerbation of pre-existing health conditions such as asthma, high-blood pressure or thyroid disease. When the pregnancy is desired, the pregnant woman willingly assumes this demanding physical responsibility. However, when the pregnancy is unwanted, these significant biological changes are externally imposed, and their cost undervalued (or ignored), motivated by the ‘latent assumption’ that ‘motherhood is women’s ‘normal’ condition’, rendering state actors ‘oblivious to the life-consuming consequences of forcing women to perform its work…[A] legislature may not decide that it is reasonable to save unborn life by compelling pregnancy ‘but for’ the archaic or stereotypic assumptions about women it holds’.

The strength of the stereotype is heightened when we acknowledge that in no other context does the law demand that one individual offer bodily assistance to another. As some authors note, the law does not mandate that one jump into a river to save a child from drowning. Closer to the context of pregnancy, the law does not require that a parent run into a burning house to rescue a child, or compel a parent to donate a kidney to a child who needs a kidney even for one day, forget 12 weeks (see here, here and here). Of course, a parent might willingly go into a burning house or donate a kidney to save her child, just like a pregnant woman, who desires the pregnancy, willingly provides her body to nurture the foetus. However, at issue here is an unwanted pregnancy, not a wanted one. Despite refusing to impose a similar responsibility in other analogous contexts, the law on abortion expects pregnant women to protect the foetus in this manner, indicating the role of underlying assumptions about women as mothers.

The Delhi High Court, in its order or during the hearing, made no reference to this demanding, one-of-a-kind physical responsibility imposed on women. The bodily cost borne by women in carrying to term an unwanted pregnancy was thus not just undervalued by the Court, but outrightly ignored. The Supreme Court’s order offered some respite, by emphasising women’s right to bodily integrity. However, even the Supreme Court did not acknowledge the sheer extent of the bodily demand made on women. Forcing a woman to carry to term an unwanted pregnancy is not just a question about her body being used against her will, but also about how her body is being used, and the magnitude of the ask being made of her. Without explicitly recognising the immense bodily responsibility that pregnancy is, especially when it is unwanted, the cost to women from compelling pregnancy will always be diluted (or worse, disregarded).

Growing Prominence of Foetal Interests

The Delhi High Court’s observations during the hearing also speak to another worrying trend: the growing prominence of foetal interests in India’s regulation of abortion. The Court repeatedly stated that allowing termination at 23 weeks would ‘virtually amount to killing the child’. In so observing, the Court seems to view the 23-week old foetus as a child (presumably with a right to life). This is contrary to the earlier Supreme Court decision in Suchitra Srivastava, which views the foetus only as a ‘prospective child’, and the Bombay High Court decision in High Court on its Own Motion where the Court held that ‘an unborn foetus is not an entity with human rights… A child when born and takes first breath, is a human entity’. Even parliamentary debates on the MTPA make clear that the foetus, under Indian law, is not seen as an unborn child. Though two members of the Parliament in 1971 and one member in 2020 opposed the MTPA on the basis that abortion is ‘virtually murder’ and a ‘crime against humanity’, their objections were rejected, pointing out that ‘there is no violation of [the right to life] in any manner’. The Delhi High Court decision, then, is inconsonant with precedent and legislative intent in India.

The Supreme Court’s order, in contrast, speaks a different language. In assessing whether the termination ought to be permitted or not, the Supreme Court does not refer to the foetus. While that is certainly a position the law can take—that the foetus ought to be irrelevant in determining the permissibility of abortion—that conclusion has to be reasoned, especially in light of the earlier Supreme Court decision in Suchitra Srivastava which takes the foetus’ status as a prospective child into account as a ‘reasonable limitation’ on the right to abortion. It is therefore important for the Supreme Court in Ms X to set out a principled basis for its stance, failing which it risks contributing to doctrinal confusion on the role of the State interest in preserving the potential life of the foetus in limiting the abortion right; it remains to be seen whether this will happen when the case is finally considered on merits. On this point, instead of silence, a more helpful response would be for courts to ask, and to hold the State accountable for answering with evidence, several key questions: Is the potential life of the foetus a legitimate aim which the State can pursue? Even if it is, are restrictive abortion laws suitable in achieving the aim? Are such laws necessary to protect foetal potentiality? Going forward, the answers to these questions will be central in determining the shape of the law on abortion in India.