Aravind Sundar*

The case commentary on ‘X v Union of India’ scrutinizes the contradictory approaches within India’s abortion jurisprudence, navigating between statutory limitations and judicial interpretations favoring reproductive autonomy. The Medical Termination of Pregnancy Act, 1971 (MTPA) delineates strict gestational and circumstantial boundaries, yet judicial precedents, notably ‘X v Delhi,’ extend reproductive autonomy. ‘X v UOI’ exemplifies this discord, denying a woman’s abortion request at 26 weeks despite mental health concerns and contraceptive failure. Critiques highlight the court’s failure to recognize external influences, reliance on foetal rights, and a judicial textual approach conflicting with past rulings. This conflict questions India’s stance on reproductive autonomy, creating uncertainty in abortion law, wherein rigid statutory limits clash with evolving judicial interpretations, leaving reproductive rights subject to judicial discretion.

Recently, the Supreme Court in X v Union of India (dated 16 October 2023)(‘X v UOI’), denied a pregnant woman the opportunity to abort a 26-week old foetus, despite her mental health problems and clear intent to terminate the pregnancy. The author argues that this judgement demonstrates the emergent discordant approaches that the Indian legal system is taking with reference to abortion, with its black letter clearly laying down gestational and circumstantial limitations on the exercise of abortion, while Courts “purposively” interpret it to favour reproductive autonomy.

The author first begins by briefly explaining the statutory law and its gestational and circumstantial limits on abortion in Section 1. Section 2 delves into Indian abortion jurisprudence and its contradictory emphasis on reproductive autonomy. X v UOI, which exemplifies this discordant approach shall be discussed in Section 3. Section 4 shall delve into three key criticisms of the judgement: firstly, that it fails to recognise the external influence that affected the Petitioner’s reproductive autonomy; secondly, its problematic reliance on the concept of foetal rights in justifying its decision; and thirdly, that it contradicts principles of reproductive autonomy that were laid down in a previous Supreme Court case (X v Delhi). Finally, Section 5 shall discuss the issues that such a discordance creates for reproductive rights in India.

The Black Letter Law on Abortion

The Medical Termination of Pregnancy Act, 1971 (‘MTPA’) provides for certain circumstances when a pregnancy may be legally terminated by a registered medical practitioner. Under S. 3(2), a pregnancy not exceeding 24 weeks may be terminated if at least two registered medical practitioners (‘RMP’) are of the opinion, in good faith, that the continuance of the pregnancy would either involve risking the life of the pregnant woman[1] or cause a grave injury to her physical/mental health (which includes contraceptive failure or rape), or would pose a substantial risk that the foetus, if born, would suffer from any serious physical/mental abnormality. However, under S. 5, a pregnancy may be terminated even beyond 24 weeks if it is immediately necessary to save the life of the pregnant woman. The ambit of S. 3(2), MTPA is further clarified by Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which lists certain categories of women who would be considered eligible for termination under S. 3(2) for a period of up to 24 weeks.

One of the purposes of enacting the MTPA in 1971 was to grant the benefit of termination of pregnancy to women who are impregnated “under circumstantial pressure”, with these circumstances being limited to humanitarian, health and eugenic grounds. (see pg 161 of the Lok Sabha Debates) The black letter of the law clearly takes a restrictive approach to the issue of abortion: the right to abort a pregnancy only exists in certain circumstances and within a specific gestational period. Furthermore, this right can be exercised only upon the verification of these circumstances by an RMP. In the Supreme Court’s words (see para 20), the MTPA is a provider-centric law and a pregnant person’s right to terminate their pregnancy is conditional to the opinion of an RMP.

A Contradictory, but Liberal Approach to Abortion by the Courts

The scope of the MTPA was contradictorily liberalised in 2022 by a three-judge bench of the Supreme Court in X v Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi (‘X v Delhi’). In this case, Chandrachud, J took up a “purposive” approach that emphasised and protected the reproductive autonomy of the pregnant person, to extend the ambit of the MTPA to both non-cisgender women and unmarried women. Amongst other liberal guidelines, Chandrachud, J noted that the tenor of the MTPA was to provide access to safe and legal abortion, and that it was to be given the widest construction [para 51]. The Court recognised earlier expansive interpretations of S. 5 in allowing abortions beyond the outer gestational limit. The term “mental health” was given a wide connotation which could not be “confined to medical terms or medical language, but should be understood in common parlance” [para 64].

Furthermore, Rule 3B was given a wide interpretation, with the Court holding that it was not possible for the legislature to enumerate each and every single material change in circumstance that would give rise to a right to abortion under S. 3(2). Therefore, the Rule was to be “understood as extending to all women who undergo a change of material circumstances” as opposed to a change in material circumstances in the limited situations listed out in Rule 3B [para 92-94]. Most importantly, the Court upheld and emphasised on the autonomy to make reproductive decisions free of coercion, violence or undue state influence, by linking reproductive autonomy to the constitutionally protected right to privacy [paras 105-108] and the right to dignity [para 116].

Similarly, in Suchita Srivastava v Chandigarh Administration (‘Suchita Srivastava’), the Court held that reproductive autonomy, which is the choice between procreating and abstaining from procreation, is a dimension of “personal liberty”, as protected by Art 21 [para 11]. The Court therein held that there should be no restriction on the exercise of reproductive choices.[2]

Other judgements note an autonomy-based approach to abortion by the Indian judiciary. The Bombay HC observed that forcing a person to continue with an unwanted pregnancy amounts to a violation of their bodily integrity and an aggravation of their mental health trauma, and that reproductive rights of a person cannot be superseded by the non-existent rights of an unborn foetus. [paras 14-15] There have been various cases from the Supreme Court permitting termination despite the upper gestational limit having expired, due to various reasons outside of the ambit of S. 5, such as endangerment to the foetus (see here), severe mental injury to the petitioner caused by foetal abnormalities (see here, here, here and here) or pregnancy caused by rape (see here). All of these cases were relied upon in X v Delhi, .

It must be noted that X v Delhi and the other liberal judgements mentioned above claim to take a “purposive” approach in holding that reproductive autonomy is the true intent of the MTPA, and in giving the widest interpretation to its phrases and connected Rules. However, this clearly contradicts the restrictive, narrow and provider-centric approach that the black letter of the MTPA provides, and the legislators had intended to create. X v Delhi acknowledges the fact that the abortion regime in the MTPA is provider-centric and yet somehow claims that a purposive interpretation of it would emphasise on the reproductive autonomy of the pregnant person.

Therefore, a conflict arises between a strictly textual reading of the MTPA, and its “purposive” interpretation laid down by the Courts. The actions of the Supreme Court during the various stages of X v UOI best demonstrates this contradiction. The dangerous implications that it reveals on the exercise of reproductive rights in India is further discussed.

Facts and Judgements of X v Union of India

The petitioner, a 27 year old pregnant woman, filed a writ petition seeking abortion of her 26 week-old foetus, on the grounds that she already had two children and was unwilling to continue with her pregnancy due to physical, mental, psychological or financial reasons. Her current pregnancy came up despite her using contraception.

On 5 October, a Division Bench of the Supreme Court (Hima Kohli and BV Nagarathna, JJ.) passed an order (‘Order 1’) which constituted a Medical Bench and sought for their opinion. The Medical Bench found that the 26 week old foetus was viable and had a reasonable chance of survival. There was a chance of post-partum psychosis, which was something that the couple had worried about, and the petitioner faced chances of complication owing to a hysterotomy and her previous two C-section deliveries. As a result of this, the Medical Board opined that the petitioner should be allowed to terminate her pregnancy.[3]

In their Order dated 9 October (‘Order 2’), the Bench took cognisance of several factors that favoured permitting abortion of the foetus:

Firstly, the petitioner expressed reluctance to continue the pregnancy due to some worries about petitioner’s mental, physical and psychological health. The petitioner had categorically expressed her unwillingness to continue with the pregnancy, contrary to the claims of her counsel and the Additional Solicitor General, who claimed to have persuaded her to continue with the pregnancy.

Secondly, the petitioner suffered from post-partum depression, and had been undergoing treatment for it for over a year. There was an anxiety that the strong medicines prescribed to her would have an adverse impact on the foetus’ health.

Thirdly, the petitioner had conceived despite adopting the Lactational Amenorrhea  contraceptive method, which provides its users over 95% protection from pregnancy. In other words, there was a contraceptive failure, which is recognised as a ground for abortion by Explanation 1 of S. 3(2), MTPA.

Based on these factors, the Court allowed for the termination of pregnancy. The Court also acknowledged the importance of reproductive autonomy and cited X v Delhi, holding that the MTPA was to be interpreted in an “overarching and all-encompassing sense”.

The next day, UOI filed for a recall application, based on an e-mail sent by one of the members of the Medical Board, which requested a directive from the Supreme Court on whether the viable foetus’ heart was to be stopped before conducting the termination. As per the e-mail, not doing so would result in a preterm delivery, as opposed to a termination, and the preterm baby would be subject to a long stay in the intensive care unit and a high possibility of immediate and long term disabilities.

Thus, the question before the court was whether the foetus could be terminated. In response to this, the same Bench delivered a split verdict in its order dated 11 October, 2023 (‘Order 3’). In light of the e-mail, Kohli, J refused to sanction the termination on the ground that her judicial conscience did not permit it, with no further explanation on why the abortion could not be granted. Nagarathna, J took note of a new affidavit filed by the Petitioner, in which she took cognisance of the factors mentioned in the e-mail and categorically stated, out of her free will and without external pressure, that she “made [a wilful] and conscious decision to medically terminate [her] pregnancy and [doesn’t] want to keep the baby even if [it] survives.” Nagarathna, J opined that the SC was to respect the decision of the Petitioner, keeping in mind her delicate mental and socioeconomic conditions, and upheld Order 2.

In light of the split verdict, the case was referred to a 3 judge Bench, which refused to permit the termination in its final judgement dated 16 October, 2023 (‘Final Judgement’).  In Final Judgement, Chandrachud, CJ held that an abortion could not be granted, keeping in mind that the upper gestational statutory limit of 24 weeks had been crossed. Since the Medical Board’s reports did not indicate any immediate necessity to save the Petitioner’s life by way of a termination, S. 5 could not be invoked. Furthermore, the Court, using its ‘complete justice’ powers was “averse” to issuing a direction to stop the foetus’ heartbeat, and it was observed that the Petitioner was also opposed to such a direction.

Critiquing X v UOI

There are key issues with the approach of the Court in X v UOI. The author will be addressing the following: first, the inability of the Court to recognise external interference in the reproductive autonomy of the Petitioner; second, the Court’s problematic reliance on the heartbeat of the foetus; and third, the textual approach taken by Chandrachud, CJ, which contradicts his judgement in X v Delhi.

1. Failure to Recognise External Interference

In X v Delhi, the Court noted that the choice to terminate a pregnancy resided solely with the pregnant woman, which was to be made on her own terms without any external influence or interference [para 101]. Furthermore, it was also noted that the right to dignity (in the context of reproductive autonomy) entailed recognising the pregnant woman’s competence and authority to take reproductive decisions, which was to be exercised without undue state interference [para 119]. While the Court did not explicitly define what entailed “external influence or interference” in terms of reproductive autonomy, it may be reasonably inferred that any actions that fail to recognise the pregnant woman’s competence and authority to take reproductive decisions would constitute external interference.

In X v UOI, the Court failed to recognise the external interference played by the Petitioner’s lawyer and the ASG. In Order 2, it was noted that the Petitioner’s lawyer and the ASG had claimed to have persuaded the Petitioner in continuing with the pregnancy. However, it was only after the Court spoke directly with the Petitioner did they understand that her wishes were to actually abort the pregnancy and not continue with it. [para 9]

The Petitioner was clearly in favour of terminating the pregnancy. This position was misrepresented and misaligned by both the lawyers before the Court, when they claimed to have persuaded her in continuing with the pregnancy. This clearly constitutes a lack of recognition of the authority that the Petitioner held in terms of deciding what course of action she wished to take with her pregnancy, and a failure to respect her interests in this case. The Court should have recognised this external influence that was being propounded by the lawyers, and should have taken the necessary action regarding this violation of the professional conduct rules of the Bar Council of India (see chapter II).

In Final Judgement, Chandrachud, CJ refused to grant a termination, with one of the grounds being that both the Court and the Petitioner was averse to directing the doctors to stop the foetus’ heartbeat [para 25]. In light of the aforementioned external influence that was played by the lawyers, it becomes questionable if this position of the Petitioner (which was one of the grounds for denying abortion) was actually borne out of her free will and choice. This is especially so due to the fact that this position directly contradicts her position in an affidavit filed by her in response to the recall application (see Order 3, Nagarathna J’s opinion, para 2), in which it was stated that she had “made [a wilful] and conscious decision to medically terminate [her] pregnancy and [doesn’t] want to keep the baby even if [it] survives.” It was also reported at various junctures that the Petitioner had continuously wished to terminate the pregnancy.

A Problematic Reliance on Foetal Rights

In Order 3, when the Court was made aware of the e-mail sent by one of the doctors which requested a directive for foeticide, Kohli, J relied on this e-mail and opined that her “judicial conscience … does not permit the petitioner to terminate the pregnancy.” [Kohli, J’s opinion, para 7] There was no reliance on any of the legal provisions present in the MTPA, or any case law in Kohli, J’s opinion. It must be emphasised that her change in stance leading to a refusal of termination was only based on her “judicial conscience”. Kohli, J was also reported to have made an oral comment, asking “Which court wants to stop a foetus with a heartbeat? Certainly not us, for heaven’s sake”.

Similarly, Chandrachud, CJ was reported to have remarked that the rights of an unborn child must be balanced with a woman’s reproductive right”. In Final Judgement, he opined that the Court was “averse to issuing a direction” to the doctors to stop the heartbeat of the foetus for the purposes of a termination. His reasoning for this aversion was threefold, which will be dissected in the next subsection.

What is important to note from the aforementioned excerpts is that the judges had found a need to protect the foetal heartbeat in light of information about its viability. The Court had emphasised on protecting the foetal heartbeat over respecting the Petitioner’s crystal clear wishes to terminate the pregnancy.

This stance of the Court that emphasises on protection of the foetus is problematic. An emphasis on protecting the foetal heartbeat directly contradicts the abortion jurisprudence in India, which has always prioritised the reproductive autonomy of the pregnant person. Apart from Suchita Srivastava, which creates an unexplained “compelling state interest” in protecting a foetus, no Supreme Court case has mentioned foetal rights as a reason for denying abortion, nor has found foetal rights within the ambit of the Constitution.

More importantly, introducing the concept of protection of foetal heartbeat would bring about dangerous implications for reproductive rights in India, and would defeat the longer gestational limits set out by the MTPA. A foetus develops its heart within the first trimester (see here and here). If termination rights were to be restricted based on an aversion to stopping this heartbeat, then the MTPA would have to restrict the gestational limits to around 4-12 weeks. This would drastically set the clock back on reproductive rights in India. Similar laws based on foetal heartbeat in the USA (commonly referred to as “heartbeat laws”, which seek to ban abortion as soon as a foetal heartbeat is detected) have received widespread criticism for disproportionately curtailing reproductive healthcare services, relying on unscientific rhetoric to establish upper gestational limits, and legitimising gender paternalism that creates a false equivalency between reproductive rights and foetal rights (see here, here and here).

Chandrachud, CJ’s approach in Final Judgement contradicts X v Delhi

Both X v Delhi and X v UOI are 3 judge bench judgements. As held by the Constitutional Benches in Central Board of Dawoodi Bohra Community v. State of Maharashtra (pg 5-6) and Sub-Committee of Judicial Accountability v. Union of India [para 5], a Supreme Court judgement would be binding on future benches of both lower strength and coequal strength. Therefore, the law laid down in X v Delhi was binding on the coequal 3 judge bench in Final Judgement, unless the Court doubted the correctness of the judgement and referred it to a larger bench, which was not the case.

In Final Judgement, Chandrachud, CJ takes a restrictive and strictly textual approach to deny termination, despite the fact that the Petitioner suffered from mental health problems, had a possibility of complications arising at delivery, and an opinion from the Medical Board in favour of termination (see Order 2, para 7). His reasons to deny termination included firstly, that the upper gestational limit of S. 3, MTPA had elapsed; secondly, that there were no substantial foetal abnormalities justifying termination beyond the upper gestational limit in S. 3(2B), MTPA, and thirdly, that there was no immediate necessity to save the Petitioner’s life, which would justify termination beyond the upper gestational limit under S. 5, MTPA. This textual approach strictly follows the restrictive circumstantial limits of the MTPA.

However, this contradicts his own binding opinion in X v Delhi, wherein he had emphasised on respecting reproductive autonomy as a facet of the right to dignity, and held that “mental injury” was to be interpreted expansively. Chandrachud, CJ also failed to subject the Petitioner’s case to his expansive test of material change in circumstances in Rule 3B that he created in X v Delhi [paras 96-97]. An expansive reading of “mental injury” would mean that a combination of factors, namely the post-partum depression, which the Petitioner was recognised to have suffered from [para 10], her poor socioeconomic condition, and the contraceptive failure, would be sufficient to invoke the “grave injury to mental health” requirement of S. 3.

In X v Delhi, the Court also relied on the principles of various other Supreme Court judgements in which termination was granted beyond the upper gestational limit on the ground, and recognised the need for termination beyond the upper gestational limit in circumstances where there would be a risk of grave injury to the woman’s mental health if she were to carry the pregnancy to full term [para 65]. Some of the grounds in which this was justified included risk to life, mental health, foetal abnormalities, late discovery of pregnancy amongst minors and women with disabilities etc.[para 66] The justification for allowing termination beyond the upper limit was the recognition of the grave danger that the pregnancy posed to the woman’s mental or physical health. These principles to an extent contradict the text of the MTPA, but this will be addressed in a later section.

However, taking these principles as case law, and combining it with the fact that reproductive autonomy is held to be an aspect of human dignity under Art. 21, the combination of factors mentioned above should have been sufficient to warrant a termination for the Petitioner. There was a pregnancy as a result of contraceptive failure, which the MTPA recognises as constituting a grave injury to mental health. Combining the contraceptive failure with the effects that the Petitioner’s poor socioeconomic condition would have had on her mental health and the illness caused by her postpartum depression should have been sufficient to reach the standard of grave injury that would justify termination beyond the upper limit as per the principles of X v Delhi. Most importantly, there was a failure on part of the Court to recognise the Petitioner’s competence and autonomy in understanding these factors and deciding to proceed with the termination. These point to a strong case of a violation of the Petitioner’s Art 21 right to dignity.

A Battle between “Purposive” Reproductive Autonomy and Statutory Limits    

The various approaches taken by different judges in X v UOI is a perfect example of the clearly discordant and contradictory approaches to abortion in the Indian legal system. The statutes clearly aim to limit the instances where a pregnant person can exercise their choice of termination. Strictly abiding by it, as done by Chandrachud, CJ in Final Judgement, would restrict the reproductive autonomy that he and other judges have upheld as a facet of dignity and personal liberty in other judgements. These judgements, similar to Nagarathna, J in Order 1 and Order 2, take up an expansive and “purposive” reading of the MTPA (which doesn’t correspond to its black letter or its legislative intent) and allow terminations beyond the upper gestational limit in an attempt to protect the autonomy of the pregnant woman.

As argued above, the case further problematises the existing jurisprudential emphasis on reproductive autonomy by unprecedentedly introducing the concept of foetal rights in the issue of allowing the Petitioner to terminate her pregnancy, and attempting to balance these rights with her reproductive autonomy, which has been repeatedly upheld as a facet of Art 21.  

This raises many questions about the MTPA and the abortion laws in India. Is the purpose of these laws to protect reproductive autonomy or the foetus? Prior to X v UOI, the Courts have interpreted it in favour of the former, while the actual legislators behind the MTPA have argued for a restrictive approach to the MTPA. Meanwhile, the legislators behind its 2021 Amendment, which increased the gestational limits, have argued (pg 286) that the MTPA acknowledges reproductive autonomy,and “ensures dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy” (pg 272), while also continuing to maintain both gestational and circumstantial limits.

Is it even possible to claim that the Indian legal system is promoting reproductive autonomy, while it places gestational and circumstantial limits on the exercise of abortion and criminalises those that abort outside of the ambit of legal termination that it creates? The Petitioner in X v UOI had clearly demonstrated a need to terminate her pregnancy, due to various material circumstances that were recognised in Order 2. Yet, she was denied the permission to do so due to the gestational and circumstantial limits propounded by a textual reading of the MTPA, when similar circumstances have justified termination in other cases.

More importantly, can there even be limits on reproductive autonomy in the name of an unexplained and supposedly “compelling state interest” (see Suchita Srivastava) to protect the foetus, if it is an aspect of the same dignity and personal liberty that the Constitution so vociferously protects?

Conclusion

Certainty of the law is a principle that each legal system aims to abide by, and the Indian legal system has clearly failed to maintain certainty in its abortion jurisprudence. The Supreme Court’s actions in X v UOI have demonstrated the clear battle between contradicting notions of reproductive autonomy and foetal protection which somehow coexist in the Indian legal system. This stems from a “purposive” interpretation of the MTPA, which in its essence completely contradicts a strictly textual interpretation of the MTPA, with both approaches relying on opposing first principles. The first principles of how the Indian legal system wishes addresses abortion and reproductive rights must be re-examined, as the current combination of case law and statutory provisions have essentially created two differing approaches that leaves the exercise of reproductive rights not to the pregnant person or the RMP (as intended by the MTPA), but instead at the mercy of the former’s luck of having their case heard by a Bench that would rule in favour of their reproductive autonomy.

[1] The author recognises that there is a need for abortion healthcare services to non-cis women as well, and that the usage of the term “pregnant woman” should not be construed as a denial of this need. However, in many instances throughout the article, it was deemed necessary to use the term pregnant woman.

[2] Despite its autonomy based approach, Suchita Srivastava interestingly held that there is a “compelling state interest” in protecting a foetus, with no explanation as to what this interest is.

[3] The Medical Report was reproduced in Order 2, para 8.

*Aravind Sundar is a 2nd year undergraduate student at the National Law University, Delhi.