Gestational change in India’s abortion jurisprudence

The Supreme Court has expanded the ambit of the MTP Act, and placed the autonomy of the pregnant person at the forefront in balancing the rights of the pregnant person and the foetus.

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"GRANTING women the civil right to have control over our bodies is a basic feminist principle. Whether an individual female should have an abortion is purely a matter of choice. It is not anti-feminist for us to choose not to have abortions. But it is a feminist principle that women should have the right to choose"

–          American author and social activist bell hooks, 'Feminism is For Everybody'

July 15, 2022 would have been an ordinary day at the Delhi High Court. Writ petitions were listed before it by the hundreds. This is a tale of one such writ petition. This writ petition, which became the protagonist of every news headline in this country over the past few days, was that of a woman seeking an abortion to terminate her pregnancy at 23 weeks and 5 days after her relationship ended.

What followed was a shocking proceeding, with the bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad saying, "Why are you killing the child? We are giving you a window… There is a big queue for adoptions." According to the Hindustan Times, the bench further said, "Your whereabouts will not be known to anyone. Deliver the baby, please come back… You ask the client. Everything will be looked after by the Government of India or the Delhi government or some good hospital. I am also offering to pay." The court dismissed the writ petition since the pregnancy was out of a consensual, unmarried relationship.

The woman could have gone on and had an unsafe abortion, as 67 per cent of the abortions in India happen, and this could have possibly led her to be one of the eight women who die of these unsafe abortions every day in this country. But the woman persisted. She appealed to the Supreme Court with three prayers: allow her to terminate the pregnancy, protection to her and the registered medical professional ('RMP') performing her abortion, and a direction to the government to include pregnant women under the ambit of Rule 3B of the Medical Termination of Pregnancy Rules, 2003 ('MTP Rules').