‘Unwillingness is decisive’—SC allows 30-week abortion, says no woman can be forced to give birth

The Supreme Court's decision sets aside a Bombay HC order that directed the girl, who became pregnant when she was a minor, to deliver and give the child for adoption.

Illustration by Soham Sen | ThePrint Team

New Delhi: A woman, especially a minor, cannot be compelled to continue an unwanted pregnancy, notwithstanding the circumstances in which it arose, the Supreme Court noted Friday.

This observation, affirming the woman’s right to reproductive autonomy, was made by a bench of justices B.V. Nagarathna and Ujjal Bhuyan while permitting an 18-year-old girl to abort her 30-week pregnancy.

The girl was a minor when she got into a relationship with a friend and became pregnant. The SC order was passed on an appeal filed by her parents against a Bombay HC order directing her to deliver and give the child for adoption.

Abortion is governed by the Medical Termination of Pregnancy (MTP) Act, 1971, as amended in 2021, and the Act does not recognise choice alone beyond 24 weeks of pregnancy, though courts have allowed abortions beyond 24 weeks, relying on Article 21 (right to life & dignity), reproductive autonomy and bodily integrity, mental trauma and social consequences, and woman’s clear unwillingness to continue pregnancy.

In the present case, before the top court issued the termination orders, it grappled with the “difficult moral and legal questions” surrounding complex cases where a woman’s right to bodily autonomy is in direct conflict with the foetus’s right to live. Both rights are offshoots of Article 21, which empowers a citizen to live with dignity.

“The issue is not whether the relationship was consensual or whether it was a case of sexual assault. Ultimately, the fact that the child to be is not legitimate, and secondly, the mother to be of the child does not want to bear the child,” the bench said, recording the girl’s explicit unwillingness to carry on with the pregnancy, despite an advanced stage.

For the court, the minor girl’s right to choose was paramount, regardless of how or why she got pregnant.

“What has to be considered in the instant case is the right of the minor child to continue a pregnancy, which is ex facie illegitimate inasmuch as she is a minor and has to face this unfortunate situation of having the pregnancy owing to a relationship that she had,” the bench noted.

As the court allowed the girl’s plea, it directed Mumbai’s JJ Hospital to follow the necessary medical safeguards and terminate her pregnancy.

“If the interest of the mother is to be taken note of, then her reproductive autonomy must be given sufficient emphasis,” the court said, adding it cannot compel any woman, much less a minor child, to complete her pregnancy if she is otherwise not intending to do so.

‘The judge’s dilemma’

The judges, however, highlighted the dilemma they face while deciding cases such as the one at hand.

Justice Nagarathna, who was more vocal of the two, shared her concerns over the tightrope-walk judges have to do in these matters where a woman’s reproductive choice is pitted against an unborn child’s right to live, particularly in cases where the foetus has developed a heart, meaning it has acquired life.

“It is also difficult for us, but what to do?” she said, mulling over whether a woman should be forced to give birth to a child who is clearly an illegitimate one.

“Sometimes, it takes time to make a decision whether to terminate or not. There are so many cases where termination takes place beyond what’s stipulated under the Medical Termination of Pregnancy (MTP) Act. And, doctors say we won’t do it. Where will they go? To quacks and unauthorised doctors,” she opined.

The decisive factor that led the court to rule in the minor girl’s favour was her “clear and consistent unwillingness” to continue the pregnancy.

“Whether we should compel her to give birth to a child? Because the child who will be born is also ultimately going to be a life. Then there is another question: if she can terminate at 24 weeks, why not at 30 weeks? Ultimately, she doesn’t want to continue the pregnancy.

Bottom line is she doesn’t want to give birth, that is the difficulty,” Justice Nagarathna said.

During the hearing, the girl’s counsel told the bench that the Bombay HC had said that a full-term pregnancy may be carried out and, later, the child may be given up for adoption.

However, undergoing a full-term pregnancy, thereby delivering a child, would cause the girl mental and physical trauma, besides social stigma.

“She resides in Thane, and when she goes back in a full pregnant state, she will face trauma,” the lawyer told the bench when it enquired about his objection to the HC’s decision.

On taking note of the medical documents that ruled out medical risk to the girl in case of termination and the fact that continuation would be traumatic for her, the court ordered the abortion.

It, however, noted that it was a belated decision. Yet, it protected and enforced the girl’s rights.

The court also observed that the possibility of the foetus remaining alive despite the termination is very high. It agreed with the state’s contention that if the girl is allowed to complete her pregnancy, the child born would be healthy and could be handed over for adoption.

Asking the girl to give a written consent to the medical termination of pregnancy, the court ordered, “We are not sure whether the relationship was consensual or not. Ultimately, the denominator is that the child is illegitimate, and the mother does not want to bear the child. The mother’s reproductive autonomy must be given emphasis.”

(Edited by Madhurita Goswami)