India has a liberal, pro-choice abortion law that is well ahead of those of other nations, according to CJI DY Chandrachud. A married lady who wishes to end her 26- week pregnancy medically is the subject of the case being heard by SC. This calls into question both the current legal system and a woman’s choice in choosing to abort.
Woman’s Perspective
- Unplanned Pregnancy: According to a 27-yearold married mother of two, her pregnancy was not planned.
- Financial Strain: After the birth of her second kid, she is receiving therapy for postpartum depression, and she claims that her family’s income is insufficient to sustain a second child.
Court Decisions and AIIMS Report
- First Approval: An abortion up to 24 weeks was first approved by a two-judge bench, which reasoned that an unintended pregnancy brought on by a contraceptive failure is similar to a forced pregnancy.
- AIIMS Concern: Given that the fetus is still alive, AIIMS, Delhi, has expressed concerns over the possibility of performing foeticide, or halting the foetal heart, prior to abortion.
- Three-Judge Bench: Chief Justice of India (CJI) D Y Chandrachud led the three-judge bench that took up the case. The bench demanded a new medical report to evaluate the health of the fetus and the lady.
Understanding the Abortion Law
- Medical Termination of Pregnancy Act (MTP Act): The MTP Act allows termination of pregnancy in three stages.
1. Termination up to 20 weeks with the advice of one doctor.
2. Pregnancy at 20-24 weeks requires the opinion of two registered medical practitioners, under specific conditions.
3. After 24 weeks, a medical board in approved facilities assesses the termination based on substantial foetal abnormalities.
Court’s History of Allowing Late-Term Abortion
- Several Precedents: The court has previously permitted terminations beyond 26 weeks in various cases, often in cases of rape or consensual relationships.
- Marital Status Factor: The current case distinguishes itself by the woman’s marital status, implying that the conception is consensual and not a forced pregnancy.
- Balancing Rights: Woman vs. Unborn Child
- Ongoing Debate: The CJI-led Bench oscillates between prioritizing a woman’s rights over abortion and the need to balance the rights of the unborn child.
- Liberal Approach: India’s law on abortion is considered liberal and pro-choice, with courts often favoring the woman’s autonomy.
Comparisons with International Standards
- Foetal Viability: In India, the idea of using “foetal viability” as a criterion for approving abortions is still relatively new. It is compliant with global norms.
- USA Roe v. Wade: In 1973, the US Supreme Court decided a historic judgment that permitted abortion up until the point of fetal viability. Viability was 28 weeks in 1973, however, thanks to scientific discoveries, it is currently shorter.
- Indian legislation is criticized for being unclear by some since doctors, not women, decide whether to end a pregnancy after 20 weeks, which frequently requires judicial intervention.
Autonomy vs. Unborn Child’s Rights
- Legislative Gap: Although women’s autonomy in reproductive decision-making is supported by the Indian legal framework, there are still gaps in the law, particularly with regard to impromptu interventions.
- Ethical Debate: Although Indian law favors women’s liberty, there are moral conundrums with regard to the rights of unborn children.
- Legal precedents: The validity of the MTP Act with respect to an unborn child’s right to life has been discussed in cases such as Nand Kishore Sharma versus Union of India.
Conclusion
- Abortion in India is fraught with legal and ethical issues, as demonstrated by the current Supreme Court case.
- Although a woman’s right to make her own decisions is protected by the law, striking a careful balance between personal freedom and the rights of the unborn child is difficult.
- This complicated case highlights the necessity for ongoing legal discussion and even legislative changes to meet changing reproductive rights issues as the court works through it.
