‘Pro-life’ v ‘Pro-choice’ is an issue that countries around the world continue to debate. The significance of this issue is so profound that a country, which supposedly is the world's oldest democracy, overturned its 50-year-old Roe v Wade decision, which protected women's right to abortion as an intrinsic part of the right to privacy.

Fortunately, India doesn't have that kind of problem because we have a legislation, the Medical Termination of Pregnancy Act, 1971 (as amended in 2021) (MTPA), which regulates the right to abortion. However, the legislation provides for an upper limitation of the gestation period, that is, 24 weeks, during which pregnancy can be terminated, except in two circumstances - where it is necessary to avoid imminent danger to the woman's life, or if there are substantial foetal abnormalities.

Once the statutory upper limit is crossed, the Courts are the ultimate decision makers, which induces an element of subjectivity to the decision, reflected in the recent judgments where contradictory opinions may have emerged over whether foetal viability should prevail over reproductive choices of women.

What is the MTPA legislation?

Section 3 of the MTPA categorises the right to terminate pregnancy in three categories.

1. Till 20 weeks :

If the gestation period is till 20 weeks, a woman can terminate pregnancy based on her consent and on the opinion of one registered medical practitioner if Continuance of pregnancy would involve a risk to life/cause grave injury to her physical or mental health: anguish caused due to failure of contraception pills, either by a woman or her partner, would be “presumed” to constitute a grave injury to mental health/anguish caused by pregnancy due to rape also falls within grave injury to mental health. There is a substantial risk that the child born would suffer from a physical or mental abnormality. In order to determine if continuation of pregnancy would risk the woman of grave injury, the woman's actual or reasonably foreseeable environment should be considered. If a woman is a minor or mentally ill, pregnancy can't be terminated without the consent in writing of her guardian.

2. From 20-24 Weeks :

On October 12, 2021, the Union Government notified the Medical Termination of Pregnancy (Amendment) Rules 2021, in which the categories of women eligible for abortion of pregnancy up to 24 weeks were specified. They are :

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

The upper gestational limit from 20 weeks to 24 weeks was increased in the 2021 amendment. Also of interest to note that the amendment modified the words 'wife' and 'husband' to 'woman' and 'partner' respectively, to not restrict the benefits of abortion to matrimonial relationships only.

3. 24 Weeks beyond :

The legislation doesn't talk beyond 24 weeks, and parties have to approach the constitutional courts under Article 32 or 226.

Rule 3A(a)(i), inserted by the 2021 amendment, says that the Medical Board shall have the power to allow or deny termination of pregnancy beyond 24 weeks, considering that the procedure is safe for the woman and whether fetal malformation has a substantial risk of being incompatible with life, or the child born would be seriously handicapped. Under the Act, it is presumed that the gestation period limitation doesn't apply when the termination is necessitated by substantial foetal abnormalities diagnosed by a Medical Board or where the medical practitioner is of the opinion that the termination of pregnancy is “immediately” necessary to save the life of the pregnant woman.

The Controversy :

Recently, a bench of Justices BV Nagarathna has allowed the termination of the pregnancy of two minors at the gestation period of 28 weeks and 30 weeks, respectively. Since both cases fell beyond the statutory limit, the Court invoked Article 142 to state that the decisive factor would be the clear and consistent unwillingness of the minor to continue the pregnancy.

In the April 2026 case, in S v. UOI (2026), a mother approached the Court for the termination of 28 weeks pregnancy of her 15 years old daughter after the Delhi High Court refused.

The High Court directed All India Institute of Medical Science (AIIMS) to constitute a Medical Board, which stated that even though the minor doesn't suffer from any psychiatric and psychological issues, termination of pregnancy may entail a significant risk, to the extent causing adverse effects on her future reproductive health.

The State's approach is paternalistic in cases of termination of advanced pregnancy. Its consistent stand is that the child born will be taken care of by the State and can be given for adoption, despite the fact that the minor was unwilling and had twice attempted to take her life.

A bench comprising Justices Nagarathna and Ujjal Bhuyan stated that in cases of unwanted pregnancy, the approach of compelling a woman to give birth and then saying the child can be given for adoption is incorrect because it negates the welfare of the woman and makes it subordinate to the child yet to be born. It went beyond the statutory scheme here, which says that only in cases of substantial foetal abnormalities and risk to mother's life that the ceiling limit can be crossed.“Moreover, the invocation of foetal normalcy or the fact that the pregnancy has been carried for a considerable duration as grounds to deny termination is of no constitutional persuasiveness. These arguments proceed on the assumptions: first, that in the absence of foetal abnormality, the continuation of pregnancy is unobjectionable, and second, that the passage of time extinguishes the pregnant woman's claim to decisional autonomy.”

The Court also remarked that if constitutional courts adopt the view of allowing unwanted pregnancy to continue, the women would visit illegal abortion centres.

The bench relied on X v. The Principal Secretary, Health & Family Welfare, 2022 Legal Eagle (SC) 789  [Judgment 1] passed by a bench comprising Justices DY Chandrachud, Surya Kant, and AS Bopanna. In this, the bench allowed an unmarried woman to terminate her 24-week pregnancy.

The Court also relied on its own decision in the February 2026 judgment in A (mother of X) v. State of Maharashtra, which allowed a minor to terminate 30 weeks of pregnancy after the Bombay High Court refused. In this case, the Bombay High Court relied on a 2023 judgment by Justice Chandrachud in X v. Union of India, 2023 Legal Eagle (SC) 1029 [Judgment 2] wherein the Court refused to allow termination due to foetal viability to refuse her plea, and dismissed her plea for termination.

When the matter went to the Supreme Court, Justice Nagarathna, instead of relying on Judgment 2, which is the latest judgment, she relied on Judgment 1, which favoured her stance.

What are the two divergent judgments of Justice Chandrachud?

Judgment 2 emerged from a split opinion delivered by a two-judge bench of the Supreme Court. A bench comprising Justices Hima Kohli and Nagarathna had allowed the termination of 26 weeks pregnancy of a mother. The case was that the mother had just given birth to the second child, and within a year, she found herself pregnant again and suffered from post-partum depression.

The Court had allowed after the mother said that she had used a contraceptive method, but it failed. However, the next day, the Union filed a recall application citing the report of the AIIMS doctor that the fetus had a chance of survival.

Taking note of this, Justice Kohli recalled the initial order, but Justice Nagarathna maintained her stance, relying on Justice Chandrachud's 2022 judgment. Due to the split, the matter went to Justices Chandrachud (then CJI), JB Pardiwala and Manoj Misra, which disallowed the woman to terminate her pregnancy. It stated that the rights of the unborn child cannot be ignored, and took an interpretation true to the spirit of the legislation.

In line with Judgment 2 is another decision in A(mother of X) v. State of Maharashtra(2024)[Judgment 3], in which a bench of Justices Chandrachud, JB Pardiwala and Manoj Misra recalled its order allowing termination of pregnancy beyond 28 weeks of pregnancy of a rape survivor after parents raised health-related concerns.

A case-by-case analysis suggests no anomaly :

The law of interpretation suggests that the law settled in the most recent judgment must prevail. The question is, was Justice Nagarathna right in following the law laid down in Judgment 1, when she had Judgments 2 and 3 before her?

While prima facie it appears that Justice Nagarathna ignored the subsequent judgments, that's not the case. These matters actually require a case-by-case analysis because every case is unique and therefore, even the Courts are compelled to recall their orders considering a change in circumstances.

In both recent judgments of Justice Nagarathna, the minors may have fallen into consensual relationships, and their consistent stand was that they wanted to terminate their pregnancy, and the report of the Medical Board was silent on the psychological distress and the effect of forced pregnancy on them, despite the signs of emotional and physical damage when forced to carry out the pregnancy.

In such a situation, the reliance of Justice Chandrachud's Judgments 2 and 3 actually makes little sense, as the parties involved in these two cases had changed their stand subsequently .In Judgment 2 (which related to an adult married woman), the AIIMS had initially shown apprehension about the viability of the fetus. Then, suddenly, the next day, it changed its stance, saying the fetus had strong survival chances. Interestingly, Justice Kohli had noted that if the foetus is born alive, it must be incubated.

This was an exceptional case because the woman had adopted the lactational amenorrhea method, and pregnancy is considered rare amongst breastfeeding women.

The stark distinction here is that the conception was voluntary. It can't be placed in the same threshold as an unwanted teen pregnancy because while the woman here was undergoing psychological stress, she didn't have to go through the societal stigma that minors or unmarried women may have to additionally.

Similarly, in Judgment 3, the woman was a minor rape survivor, and her parents subsequently took a contrary stand, resulting in the recall of the order.

A similar change of stance was attempted by AIIMS in the 30-week pregnancy matter by first filing a review petition and then a curative petition. It may be noted that the hospital had come to the Court instead of sharing the information with the child and her family. However, a bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi refused to entertain the plea and stated that AIIMS can't force the minor to give birth.

It suggested that amendments can be made to remove the time limit for termination of pregnancy arising out of the rape of minor girls. This is true because the cases for termination of pregnancy beyond 24 months comprise coming-of-age couples, falling between 16 and 18 years. Unfortunately, we don't have Romeo-Juliet clauses, and such relationships are criminalised under the Protection of Children from Sexual Offences (POCSO) Act and the Juvenile Justice (Care and Protection of Children) Act, 2015.Views are personal.

The author is an Advocate at Common High Court of Jammu & Kashmir & Ladakh.