[This is a guest post by Ananya Giri Upadhya.]
In June, the United States Supreme Court’s decision to overturn Roe v Wade triggered observations that the right to abortion was better protected in India than in the United States. A judgement in September by the Supreme Court of India (SC) providing for abortions after the 20-week mark to unmarried women was further affirmed as a “huge step forward”. However, the new “change in material circumstances” standard evolved by the SC leaves much in the hands of lower courts, which may not be as progressive.
The Case
India does not provide an absolute right to abortion; that is, based on the will of the woman. Instead, Section 3(2) of the Medical Termination of Pregnancy Act, 1971 (“Act”), as amended in 2021, stipulates that a woman may opt for an abortion up to the 20-week mark with one medical opinion that it risks her life or “grave injury to her physical or mental health” or that there is a substantial risk that the child, if born, would suffer from serious abnormalities. Meanwhile, abortions beyond the 24-week mark are generally impermissible unless necessary to save the woman’s life or a substantial abnormality is diagnosed.
Abortions between 20 and 24 weeks are only allowed in six categories, provided they are backed by two such medical opinions. Section 3B of the Medical Termination of Pregnancy Rules, 2003 (“Rules”) lays down these categories:
- Of women: (1) minors, (2) survivors of sexual assault, rape or incest, or (3) women with physical/mental disabilities,
- Of foetuses: (4) a foetus with a malformation that risks incompatibility with life or serious handicap, or
- Of circumstances: (5) a woman in humanitarian settings, disasters or emergency situations (declared by the Government) or (6) a woman who has experienced a “change of marital status during the ongoing pregnancy (widowhood and divorce)”
Those involved in abortions not permitted by the Act, including the woman herself, are criminally liable under the Indian Penal Code (IPC) for up to seven years’ imprisonment.
X v. Government of NCT of Delhi (“X v. NCT”) was born out of an unmarried woman’s interest to terminate her 23-week pregnancy because the partner had refused to marry her “at the last stage”, ending the relationship. Her prayer was that Category 6 be interpreted as including a “change in relationship status”, through an equality claim that the category provided a leeway to married women but not to single or unmarried women. Giving birth, she stated, would lead to social stigma, agony and financial burden to both her and the child.
The Delhi High Court, however, dismissed her petition, refusing to give the legislation the purposive interpretation it deserved, given the object of the Act “to liberalise” provisions relating to abortions (ironically, one of the judges had opined in a maintenance case last year that social welfare statutes must be liberally construed so as to not defeat their purpose). X then approached the SC in July, who, in a temporary ruling allowed her to get an abortion considering the object of the Act and a 2021 amendment which replaced references to a “married woman” and “husband” in the Act with “woman” and “partner” respectively.
The SC’s Final Judgement
While considering the issue again in September, the SC did not restrict itself to the equality claim on “relationship status”, although X’s petition, some part of the July order, and a recent petition by Nikhil Datar, the gynaecologist whose efforts resulted in many of the 2021 amendments, hewed to this claim.
Instead, the SC expanded Rule 3B to include all women (instead of expanding it to women who faced a change in relationship status). Yet, as it still considered Rule 3B a “leeway” for women who were unable to get an abortion earlier (paragraph 82), it was imperative for it to impose some restriction on abortions – which it opted to do by way of the term “change in material circumstances” (“CMC”) (paragraph 93). It left each case to be tested against this standard per its unique facts and circumstances (paragraph 94).
The Problem
The SC itself identifies that women face infrastructural issues and stigma that prevents them from availing safe abortions (paragraph 18). Assuming women do make it to the doctors – to its credit, the judgement reiterates positive obligations on the state to make abortions accessible and affordable (paragraphs 129, 130, 133, and 134) – how would doctors respond to this change in law? Alok Prasanna writes that as long as the IPC criminalises abortions not saved by the MTP Act, doctors will be scared of charges by partners or families who want the pregnancy to continue to term and adjudge the CMC standard accordingly.
The trouble only begins here. The SC identified that doctors asked for family consent, documentary proofs, and judicial authorisation even while Rule 3B prevailed (paragraph 22). With the shift from a clear (albeit limited) categorisation in Rule 3B to the vague (albeit broader) standard of CMC, doctors might find themselves incapable of the required inquiry, which has a socio-economic and not medical basis. Doubtful of whether their interpretation of the standard will be held correct in case a charge is filed, they may opt to defer to the court before carrying out an abortion itself (or choosing not to abort at all, in which case the woman has to go through the harrowing process all over again with other doctors).
If they do decide to adjudge the CMC standard, doctors may look for documentary proofs, especially those matching the examples given by the SC – a loss of a job leading to financial insecurity, domestic violence, sudden diagnosis of a chronic disease, if she suddenly has dependents to support, or if she found out she is pregnant after the 20-week mark (paragraph 92). This is problematic because doctors may take these examples as exhaustive, and because documentary proofs may not always be available (such as in cases of domestic violence which is not reported due to stigma). Further, there is a disproportionate impact of requiring documentation on women working in the informal sector – for labourers (especially migrant labourers), proving the work-related impacts of childbirth through documents is impossible.
Alternatively, to avoid a criminal charge, they may ask the woman to prove that her family members are consenting to abortions. A woman whose partner, family or partner’s family want her to go through with the pregnancy and are promising support will not only be unable to show family consent, but also financial insecurity.
Back to Courts
Most ‘hard cases’, then, will fall to courts. On one hand, judges are better equipped to adjudicate socio-economic questions such as CMC and their adjudication of cases will not render them liable to criminal charges (unlike doctors). On the other hand, it remains to be seen how progressively courts assess the standard. To ascribe an attitude to judges based on decisions that predated the CMC standard might be premature, but high courts have disregarded a woman’s wish to get an abortion to continue her education and career (see Neelam Choudhary v. Union of India).
Part of the issue comes from how the standard is phrased. Courts are not required to assess merely “material circumstances”, but a “change in material circumstances”. The SC’s example of job loss evinces a view that career or educational interests are only relevant insofar as there has been some change in the woman’s position since conceiving that changed her mind after the 20-week mark. The phrasing comes from the understanding of Rule 3B as a ‘leeway’ and as a carry-forward of the phrase “change in marital status”. However, a divorce under the “change in marital status” exception is usually no sudden process: a divorce formalised during pregnancy is likely to follow a process of discord and separation that started well before conception or the 20-week mark.
Likewise, a woman whose relationship status with her partner is the same since conception (there has not been a break-up or divorce, or there was no relationship in the first place) cannot claim a change in her circumstances. In Neelam Choudhary, the petitioner had alleged matrimonial discord to the point where she intended to file for divorce. Yet, she had to carry the pregnancy – which she alleged arose out of her husband’s refusal to use protection. In a later case before the same court, intention to divorce was considered, but the abortion was ultimately allowed based on the fact that there was a registered case of domestic violence.
Would better outcomes result from a standard based on “material circumstances” instead of CMC? The judgement describes material circumstances as those “situational, social, and financial circumstances of a woman or her family [that] may be relevant to her decision to carry the pregnancy to term” (paragraph 87). This would likely provide more space to accommodate the woman’s decisional autonomy (elaborated in the next section) than having to show a change: for instance, for women who are unemployed before and after conception, like X. However, “material circumstances” might still be used to require some external basis for wanting an abortion like financial insecurity rather than the woman’s internal wishes.
A pertinent question is whether the SC could take the “material circumstances” standard instead of CMC when Rule 3B(c) reads “change of marital status”? I answer in the affirmative, but the answer is complicated by the SC’s confusion over the framing of issues itself. Although the case pertained to including unmarried women within the scope of Rule 3B(c), and unmarried women were already included in all other clauses of Rule 3B, the SC frames the issue as “whether Rule 3B includes unmarried women, single women, or women without a partner under its ambit” (paragraph 30). This allows the SC to also study all the other clauses in detail in the section on ‘Construing Rule 3B’. It finds a common thread running through each category of women in Rule 3B: that she is in a circumstance that is unique and difficult, physically, mentally, socially or financially (paragraph 69). It then recognises that Rule 3B does not “enumerate all the potential changes that a woman’s material circumstances may undergo” and that “the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances” (paragraph 93), but explaining neither the decision to interpret Rule 3B as a whole, nor the leap from mere “circumstance” to a “change” thereof.
That said, the CMC phrasing, providing scope for the dynamic and complex nature of relationships, is likely to have better outcomes than for women whose intimate partner promises support but later reneges (although the relationship subsists) than a “change in relationship status” standard.
Right to Privacy and Compelling State Interest
From showing how judges may decide against the woman’s interest even with the new, broad standard, I now question why judges are vested with this power. When a woman insists she is not ready to bear a child, it seems contrary to logic that a bench of judges – that too all-male judges, like the High Court and SC benches in X v. NCT – can rule otherwise. Courts may assess stability of career or education as a ground to suggest capability for motherhood, instead of as interests to be protected against unwanted motherhood. As Gauri Pillai has identified, motherhood is presumed to be a woman’s natural state. This presumption is in stark contrast to how women see their own pregnancies: the United Nations Population Fund finds that nearly half of all pregnancies each year are unwanted.
Instead of broadening Rule 3B in response to an equality challenge, should abortions hinge on privacy? The right to privacy was held to be a fundamental right by the SC in Justice KS Puttaswamy v. Union of India: privacy was understood as including decisional autonomy, to make the “personal, intimate” choice relating to one’s reproduction (paragraphs 248, 298, 373, and 510). Puttaswamy and the July order in X v. NCT referred to cases that held that a woman’s right to reproductive autonomy (to procreate as well as to abstain from procreating) was crucial to her privacy and dignity and that a forcible loss of this right reduces the woman to a vehicle for procreation.
The “compelling state interest” in protecting the life of the foetus countervails in abortion cases. How have courts weighed this interest vis-à-vis the rights of the woman? The Bombay High Court in Siddhi Shelar v. State of Maharashtra (quoted in Sidra Sheikh v. State of Maharashtra) held that although compelling state interest was a “weighty consideration”: However, there can be no compelling State interest, in insisting upon continuance of pregnancy beyond 20 weeks where it would involve a grave injury to the mother’s physical or mental health. The scheme of the MTP Act, even otherwise, places the interests of the mother on a higher pedestal than the interests of the prospective child. This is based on the logic that the foetus cannot have independent extra uterine existence and the life of the mother who independently exists is entitled to greater consideration.
The judgement in Sidra that “mental health” was wider than “mental illness” and included the woman’s actual and foreseeable socioeconomic environment was relied on in XYZ v. State of Maharashtra where a woman was allowed to terminate her 26-week pregnancy arising out of consensual sex owing to mental health issues, although a medical board had found that she would not face grave injury to her mental health. While the reading in Sidra is helpful in that it recognises that being forced to carry an abortion against one’s will is in itself a mental health risk, thereby allowing all cases where the woman wishes to abort to pass the requirements up to 20 weeks, the Sidra, Siddhi and XYZ cases view forced pregnancies as a (mental) health risk and not as violation of privacy, representing a missed opportunity.
Gestational Age Limits
Is there – and should there be – an increased degree of state interest depending on the age of the foetus? In a study on the human rights impacts of abortion laws, the World Health Organization (WHO) noted that gestational age limits on abortions that lead to unwanted childbirth violate not only the right to health, privacy and equality (vis-à-vis those seeking an abortion at earlier stages), but also, interestingly, the right to be “free from cruel, inhuman and degrading treatment”. It recommends against all gestational age limits on abortions.
The WHO’s analysis does not consider the “human” rights impact on a foetus, or whether (and when) a foetus is a “person” with legal rights. In Canada, which prescribes no limit for abortions based on the will of the person, the unborn foetus is a person only if it is “born alive”: that is, the foetus in utero has no independent legal status but the child after birth has legal rights retroactively. Notably, bills calling for separate charges for injuring foetuses in crimes against pregnant women have failed since they would implicitly bestow legal personhood to a foetus and give way to challenges against the right to abort. In India, a petition by a pro-life organisation calling for all abortions to be criminalised except where the woman’s life is threatened was dismissed by the Kerala High Court and now lies at the SC. The petition, which claims a “right to life” for the foetus, does not explain, then, why the mother’s right to life should take priority over that of the foetus.
The question of determining “when” to accord legal personhood is complex: there is global diversity on gestational age limits, ranging from 8-week (Guyana), 24-week (Singapore), and 120-day (Maldives) marks and the infamous “heartbeat” bills in the United States with 6-week marks. In India, the Pratigya Campaign for Gender Equality and Safe Abortion calls for the 20-week limit to be increased to a 24-week limit for all cases and not only those that meet the requirements of Rule 3B. As Pillai notes, even if there is a compelling state interest, there is no other context where one person is required to offer bodily assistance to another (for example, to donate a kidney to one’s child).
Lastly, this compelling state interest in protecting the foetus can only be extended against an abortion, but not from being abandoned or given in adoption. The bizarre suggestion made by the Delhi High Court in X v. NCT explicates this: to deliver and immediately give the child up for adoption. There is a false equivalence between an infant to be given in adoption and an unborn foetus to be aborted that hides the physical toll of carrying pregnancies to term and the psychological toll on the mother upon being torn from the infant and having to declare that she is “surrendering” her child (in the language of the Adoption Regulations). Whether it is preferable to abort than to separate a child from his birth parent and place him in adoption agencies and the shame of having been “surrendered” until – if at all – he can find adoptive parents, raises deep ethical questions.
Conclusion
The CMC standard is a double-edged sword. While its breadth accommodates more women than a “change in relationship status”, a woman’s decisional autonomy is still restricted by the narrow interpretations judges may give to it.
That said, the specificity of the prayer and equality challenge before it in X v. NCT may not have permitted the SC to delve into criminalisation of abortions and legal personhood of a foetus and how it militates against the woman’s rights. However, the SC could have dealt with this narrow scope in two ways that do better for women’s rights than the current judgement: firstly, by simply recognising that these issues, along with that of preventing sex-selective abortions, deserve analysis but in a future, more appropriate case or from the legislature; and secondly, by choosing to frame the standard as simply “material circumstances” instead of a change in material circumstances.
Constitutional Law and Philosophy 