On June 20, 2023, the Gujarat high court rejected a petitioner’s request for termination of pregnancy. As I read the order, I recalled another order, from the same court, by the same judge, in the same month, passed on June 9, 2023. In this order, the Gujarat high court allowed the petitioner to terminate her pregnancy.
Placing the two orders side-by-side, I noticed how similar the facts were. Both concerned 17-year-old minors. In both cases, the pregnancy was a result of rape. Both minors (through their guardians) appealed to the court to allow abortion as the continuation of pregnancy harmed their physical and mental health. Yet, in one, the court granted termination; in the other, the court rejected it. What changed, I wondered. And then I spotted the difference. The gestational term. The petitioner of the June 20 order was 30 weeks pregnant, while the petitioner of the June 9 order was only 20 weeks pregnant.
The MTPA’s gestational limits
India’s law on abortion, the Medical Termination of Pregnancy Act 1971 (MTPA) treats pregnant women differently based on how advanced their pregnancy is. Below 20 weeks of gestation, women are allowed to abort under a range of conditions, including grave injury to physical and mental health. Between 20 and 24 weeks, certain ‘vulnerable’ categories of women are allowed to abort. This includes minors and women who become pregnant on account of rape. No gestation limit applies to women whose foetuses have been diagnosed with ‘substantial foetal abnormalities’, meaning that these women are allowed abortions at all points during the pregnancy. The gestation limit also does not apply when termination is ‘immediately necessary to save the life’ of the pregnant woman. Let’s call this clause the life exception.
Courts have shifted in their interpretation of the exception. While initially they read the phrase ‘immediately necessary to save the life’ of the pregnant woman literally, allowing termination only in cases where the woman would die in its absence, later cases (from 2017 onwards) read it more liberally. Abortion has been allowed where the continuation of pregnancy would damage the woman’s physical and mental health, especially in cases of pregnancies on account of rape, including of minors.
Against this reading of the abortion law, both minor petitioners ought to have been granted termination. The petitioner of June 9 clearly fell within the 20-24 week exception for ‘vulnerable’ women, being both a minor and a survivor of rape. The petitioner of June 20, at 30 weeks, fell outside this exception. However, she qualified under the life exception. If so, why was her request rejected?
The court’s reasoning
The Gujarat high court refused abortion because it held that the foetus was in perfect health. If there was a ‘serious ailment’ with the foetus, it reasoned, it would have considered allowing termination even at an advanced stage of pregnancy. With the foetus being ‘normal’, the court saw no reason to grant an abortion at 30 weeks.
On the face of it, the court appears to be conflating two possible grounds of abortion: that of substantial foetal abnormality and that of rape (read into the life exception), both of which exist outside the MTPA’s prescribed gestational limits. The court ignores that the two are distinct grounds of abortion. That is, simply because the foetus is ‘normal’ (and does not suffer from a foetal anomaly) does not mean that abortion can be denied if pregnancy is a result of rape. In linking the two, the court defaulted in its reading of the abortion law.
The court’s decision, however, cannot be attributed solely to the statutory mix-up. The June 20 order is also explained by a long-abiding pattern within abortion law globally: the invisibilising of pregnant women.
Women’s invisibility
Abortion laws have historically been critiqued for rendering women invisible. Their experiences of unwanted pregnancies are either disregarded in the law’s formulation (and application), or minimised. They are instead treated as mere ‘vessels for carrying foetuses’, denied subjectivity and forced to the margins of the abortion question. The claim here is not to treat foetuses as beings without interests worthy of protection (though some argue that there are better ways of protecting foetal interests than restricting abortion). The claim is more modest. At the very least, lawmakers and courts are urged to desist from masking women within the abortion decision.
The Gujarat high court’s June 20 order, yet, reflects this very tendency. In its June 9 order, the court noted that being a pregnancy caused by rape, that too of a minor, the minor petitioner’s physical and mental health would be gravely affected by the continuation of the pregnancy. In its order of June 20, at the very least, the court ought to have recognised a similar effect on the minor petitioner’s health, considering the similarity in the circumstances of the pregnancy. Simply because the pregnancy had advanced to 30 (instead of 20) weeks did not mean that these effects were diluted. That the petitioner approached the court for termination in fact indicates that the effects remained. Once the effects were recognised, the court could have ‘balanced’ them against harm to the foetus. While the result of this ‘balancing’ might still be a rejection of the petitioner’s claim (due to India’s current legal framing), at the very least, the minor petitioner’s characterisation of the pregnancy would have been represented in a decision about her body.
Instead, the court’s June 20 order disregarded the petitioner’s pleas, characterising her health as ‘normal’, just like that of the foetus, which then became a ground for dismissing her claim. The court went a step further to recommend that she read the Manusmriti, recording several instances of minor girls becoming mothers. The implication seems to be that if others of her age have embraced motherhood without consternation, the petitioner’s protests on ground of her physical and mental health are exaggerated, or even invalid.
The court also summoned the rape accused to court (from jail), and asked him if there could be a ‘compromise’ – possibly marriage, though the court did not disclose the nature of the compromise on its mind – between him and the minor petitioner. When he deposed that he was already married, and his wife was pregnant, the court abandoned this possibility. Note that the enquiry was made only of the accused; the minor petitioner was not asked whether she would consent to this ‘compromise’. The court also appears to assume that if married by the accused the minor petitioner’s anxieties would be resolved. This not only reveals the assumption that rape is wrongful only outside marriage – reflected in the continued retention of the martial rape exemption—but also replaces the petitioner’s account of her (unwanted) pregnancy with that of the court. In one fell swoop, the court thus snuffed out the petitioner as a participant in the abortion decision.
Strangely, the Gujarat high court’s order exists in the same abortion care landscape as the acclaimed 2022 Supreme Court decision which declared: ‘it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion’. The difference between the stance of the two courts is starkly visible for all to spot. Which, then, is India’s enduring approach towards abortion, and which a mere illusion?
Gauri Pillai is an Assistant Professor (Law) at the National Law School of India University, Bangalore.
This article has been edited since publication to add details on the what transpired in the Gujarat high court before the June 20 order.
