Context:

• This article is based on an Editorial “Supreme Court divided on married woman’s right to abort 26-week pregnancy” which was published in the Hindu. Recently, a split decision of two bench judges on the decision of a married woman to abort her 26-week pregnancy is highlighting the dilemma to prioritize rights of woman or unborn child.
• Unable to reach common ground, now the case is referred to the Chief Justice of India to form a three-judge Bench.

Unborn Child and Women’s Rights: Arguments in Favor of Abortion

• Paramount Consideration to the Mother: Need to consider the mother’s well-being, privacy, and dignity.
• Conscious Decision by the Woman: If any woman has taken a conscious decision not to have the baby, then this decision should be respected, taking into account the woman’s mental condition and her inability to care for her unborn child.
• Justice B.V. Nagarathna emphasized that the woman’s decision should be respected and consideration of the woman’s socio-economic situation is must.
  • She also points out that this is not a case of a viable baby being born or unborn, and the priority should be given to the interests of the woman. 

Unborn Child and Women’s Rights: Arguments against the Abortion

• Rights of the Unborn Child: Woman does not have an absolute right of autonomy to exercise her reproductive rights in a way that would compromise the rights of the unborn child.
• Reference to the MTP Act of 2021: The Medical Termination of Pregnancy (Amendment) Act of 2021, extended the deadline for abortion to 24 weeks in exceptional circumstances, which is allowed only if necessary to save the life of the mother or in cases of a fatal deformity detected in the fetus.
• Viable Baby and State Responsibility: If there is a viable baby, the relief cannot be one-sided. The State has a responsibility to protect the life of the child, especially since a medical opinion suggests a chance of survival.
• Parliament’s Authority over Reproductive Rights: Parliament has the authority to regulate reproductive rights and determine the conditions under which abortion is permissible.
• Justice Hima Kohli agrees that the woman should not be permitted to terminate the pregnancy. Her opinion aligns with the idea that the rights of the unborn child and the State’s responsibility should be considered.     

Also read: Child Rights Violation

Conclusion:

In recent years, the Supreme Court has expanded the horizons of abortion rights, it removed a distinction between married and unmarried women, recognised the rights of trans-people, and recognised that significant reliance in deciding such cases ought to be placed on a woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy. Now it’s again the time to further expand the horizons of rights while maintaining a rational balance between the right to abortion of women and the right to life of the unborn future of India.      

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