New Delhi: Refusing to reopen its order permitting the termination of the 27-week pregnancy of a 15-year-old girl, the Supreme Court made it clear that “an individual’s choice ought to outweigh that of an institution”, declining to entertain a curative plea filed by AIIMS.
The two judge bench—of CJI Surya Kant and Justice J Bagchi—ruling presents a sharp departure from precedents set by the court’s own judgements.
The Supreme Court was faced with a similar case in April 2024—litigants facing late-term pregnancies with significant psychological trauma. A three-judge bench led by then chief justice of India D.Y. Chandrachud initially allowed the termination of the pregnancy, but later recalled the permission due to statutory and viability-based constraints.
The 2026 order, however, explicitly rejected these aspects in not recalling the permission to terminate.
The initial order in the latest case was passed by a different bench of Justices B.V. Nagarathna and Ujjal Bhuyan on 24 April. It had allowed the medical termination of pregnancy, underscoring the reproductive autonomy of a woman. The court directed AIIMS to carry out the procedure.
The AIIMS, however, approached the SC, seeking a review of the 24 April order. The bench of justices Nagarathna and Bhuyan, however, dismissed the review petition on Wednesday.
The bench said that the choice and reproductive autonomy of the minor is paramount, and she cannot be forced to continue a pregnancy simply because adoption is an option.
The hospital filed a curative petition the next day via ASG Aishwarya Bhati.
During the hearing on the curative plea Thursday, CJI Kant urged reform of the 24-week cut-off period for medical termination of pregnancy.
“Please amend your law so that in cases of unwanted pregnancy on account of rape of a minor girl, the time limitation will not be there. Let not medical personnel, because of their specialised knowledge, become the masters of the will of the people. The people will decide,” the court said.
“As judges, we cannot decide for the litigant; similarly, doctors cannot decide for their patients… see, innocent’s victimisation should not become scar for her.”
The court then refused to hear the curative plea too.
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What’s the law
Under the Medical Termination of Pregnancy (MTP) Act of 2021, abortion is allowed up to 20 weeks based on the opinion of one Registered Medical Practitioner (RMP) if the pregnancy poses a risk to the woman’s life, physical/mental health, or due to contraceptive failure.
Between 20-24 weeks, abortion is allowed for specific categories of women (including rape survivors, victims of incest, minors, disabled women, and those with marital status changes like divorce/widowhood) based on the opinion of two RMPs.
Importantly, beyond 24 weeks, abortion is allowed only for “substantial foetal abnormalities” diagnosed by a state-level medical board.
Against this backdrop, ThePrint examines the divergent rulings by the top court in cases dealing with the MTPs after the 24-week cut-off.
Contrasting outcomes
In the April 2024 case, a 14-year-old victim of a sexual assault sought the termination at approximately 30 weeks.
A three-judge bench—led by then CJI D Y Chandrachud, with justices J B Pardiwala and Manoj Misra as members—ruled that the “safety and welfare of the minor” must remain the paramount consideration in late-term pregnancy cases, and allowed termination.
A week later though, it recalled the order after a medical team and the parents raised concerns about the “inherent dangers” of the procedure at such an advanced stage.
Medical reports indicated that performing a late-stage abortion (30 weeks) carried significant risks to the minor’s physical health. The court concluded that the “safety and welfare of the minor” was the only consideration, prioritising the physical risk of the procedure over the trauma of the pregnancy.
The present case involves a 15-year-old rape survivor, now 28-week pregnant. Despite the pregnancy being “normal” and the fetus healthy, the court refused to recall the permission to terminate.
Whereas the 2024 bench deferred to medical warnings of “surgical intervention” and “fetal heart stoppage” risks, the 2026 bench prioritised the minor’s suicidal ideation, noting she had “attempted to commit suicide on two occasions” and forcing the pregnancy to term would be a “direct affront to her right to live with dignity”.
In 2023, a three-judge bench rejected a married woman’s plea to abort her 26-week pregnancy, noting that there were no substantial foetal abnormalities and no immediate danger to the mother’s life.
The court stated that it was “averse to stilling the heart” of a viable foetus, and directed AIIMS Delhi to conduct the delivery at the appropriate time, suggesting adoption as an alternative.
In another case of a 20-year-old married woman wanting to terminate her 27-week pregnancy, the top court in 2024 refused the plea. The court observed that the foetus in the womb also has a “fundamental right to live” once it reaches viability.
In 2018, a 20-year-old woman sought to terminate her 25-week pregnancy, citing domestic violence, marital discord, and a desire to pursue her career as reasons.
A top court bench of Justices Kurian Joseph and Sanjay Kishan Kaul denied the permission, stating that an abortion at that advanced stage (over 25 weeks) would amount to “murder” and the woman would “regret killing the baby” if she later reconciled with her husband.
The court suggested the ‘unborn child’ needed representation in the court, emphasising the right of the viable foetus.
Constitutional remedies vs. statutory ‘4 corners’
A primary point of conflict between earlier orders and the present one is the interpretation of the Medical Termination of Pregnancy (MTP) Act—a statute-bound interpretation versus a constitutionally expansive, rights-based approach.
The three-judge bench of Justice Chandrachud in the 2024 case emphasised that medical boards must strictly opine on whether the statutory thresholds (like foetal abnormalities) are met.
It noted that the legislation made a “value judgment” in Section 3(2-B) that termination beyond 24 weeks is justified only in cases of foetal abnormality, requiring medical boards to assess strictly within this framework.
The April 2026 order however frames the issue as a constitutional one, asserting that “a lack of remedy under a statute does not bar a constitutional remedy”.
It offers a critique of the logic used in earlier cases, including the 2024 and 2023 ones, which denied termination as the foetus was healthy.
Justice Nagarathna’s order argues against deferring “mechanically to statutory limitations”.
“If a case is not covered within the four corners of a statute then, can the Constitutional relief be also denied?” asked the court. “In our view… the Constitutional Court ought to weigh all facts and circumstances from the lens of the party who intends to terminate.”
The Constitutional court must prioritise the pregnant woman’s choice, particularly when the pregnancy is unwanted, the bench said.
The 2024 bench had expressed concern that inducing delivery at a late stage could lead to a “deformed child” or a live birth that would then need to be placed for adoption.
The April 2026 order dismisses this as a “prohibitory approach”.
“The invocation of foetal normalcy… as grounds to deny termination is of no constitutional persuasiveness”, further arguing that to deny termination simply because a foetus is healthy “instrumentalises the pregnant woman into a conduit” and that the choice of the woman must remain superior to the “interest of an unborn child”.
(Edited by Ajeet Tiwari)
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