What does the Supreme Court’s abortion verdict mean for reproductive justice in India?

Subject: Polity

Section: Constitution

In the news:

A woman — 26 weeks pregnant, married, with two children, and undergoing postpartum psychosis — requested termination because she was “physically, emotionally, mentally, financially and medically unable to carry, deliver or raise a child. But the Supreme Court rejected her plea for abortion saying that the Court’s recognition of a woman’s autonomy cannot eclipse the “rights of the unborn child.”

Abortion law in India:

India’s Medical Termination of Pregnancy Act 1971 allows abortion up to 24 weeks, post which termination is permitted only if a board of doctors attests that continued pregnancy presents a risk to the woman’s life or if there are foetal abnormalities.
In ‘X v NCT case 2022’ Supreme Court declared that ‘it is the woman alone who has the right over her body’ and is the ‘ultimate decision-maker’ in deciding if she wants an abortion.
The court also said that “continuing with an unwanted pregnancy has an adverse impact on the pregnant woman’s mental health and can be a ground for abortion”.
- The Court eventually decided that the mental health grounds for abortion did not extend beyond 24 weeks of gestation.
However in this case, there is a conflict between foetal right to life against women’s right to autonomy.

The Union Government argued the foetus is “a viable baby with a reasonable chance of survival”. What is the viability theory?

When the foetus reaches a point of viability– where it can exist outside the womb of the woman (with medical support)- the right to abortion should be curtailed.
Viability was most famously endorsed by the U.S. Supreme Court in Roe v Wade in 1973. In 1992, the U.S. Supreme Court replaced the viability standard with a different test, and in 2022, the Court rejected the viability standard completely.

India’s stance on viable foetus:

1971 law: There is no violation of the right to life in any manner for the abortion.
2009: The SC emphasized ‘compelling interest’ to protect the foetus which is a form of ‘potential life.’
2016: The Punjab and Haryana High Court claimed that once the pregnancy is viable, the ‘potential child’ becomes a part of the determination.
2019: The Calcutta HC said that at an advanced stage of pregnancy, ‘the right to life of the foetus outweighs the mental trauma’ suffered by the mother.

Rights of a foetus under Indian law:

It is not clear under the Indian Constitution.
A 2016 Bombay High Court decision relied on international human rights law to hold that the foetus does not have rights till birth.
Any form of recognition of the foetus will grievously invade women’s legally recognised rights.

Source: TH