"Nothing under the sun or on the earth can compel her to carry the fetus to full term when she does not want it." With those words, Chief Justice of India Surya Kant closed one of the most consequential reproductive rights cases in recent Indian legal history: the termination of a 30-week pregnancy of a 15-year-old rape survivor, over the concern of the AIIMS, Delhi and the Union government. The Supreme Court's ruling made one thing unambiguous: when a woman's reproductive autonomy is at stake, the state steps aside.
The debate on the right of a fetus to have a life versus the right of a woman to choose whether or not to give birth to a baby is as old as human history itself. In India, the issue is regulated by the Medical Termination of Pregnancy Act, 1971 (as amended in 2021).
As per the 1971 law, abortion was allowed up to 20 weeks of pregnancy if, in the opinion of a medical practitioner, continuation of pregnancy would involve a risk to the woman's life, or could cause grave injury to her physical or mental health. Abortion was also allowed if the medical practitioner was of the opinion that there was a risk that the child, if born, would suffer from physical or mental abnormalities. The injury to mental health could include the anguish caused due to failure of contraception pills, either by a woman or her partner, or the anguish caused by pregnancy due to rape.
Besides, pregnancy was allowed to be terminated if at least two medical professionals, "in good faith", held that it was immediately necessary to save the life of the woman. The 1971 Act further mandated that no pregnancy of a minor girl, or a major woman but 'lunatic' shall be terminated, except with the consent of her guardian "in writing".
The 2021 amendment
In 2021, the 1971 law was amended to extend the upper limit up to which abortion was allowed, from 20 to 24 weeks of gestation for some special categories like vulnerable women, including rape survivors, victims of incest, minors, women with disabilities, and the mentally retarded. The law further allowed abortion up to 24 weeks for the women whose marital status was changed during the ongoing pregnancy due to widowhood and divorce, and those in humanitarian settings, or disaster, or emergency situations as may be declared by the government.
One striking feature of the 2021 Act was the modification of the words 'wife' and 'husband' to 'woman' and 'partner' respectively, expanding the class of potential beneficiaries beyond matrimonial relationships alone.
According to the Act as it stands today, pregnancy can be terminated within 24 weeks of gestation. Beyond that period, the law provides exceptions where termination is necessary to avoid imminent danger to the woman's life or if there are substantial fetal abnormalities. Once the upper limit is reached, except for the two exceptions, whether or not to terminate the pregnancy can be decided only by constitutional courts.
The outcome so far
The debate was reignited when on April 24, the Supreme Court allowed the termination of 28-week (over seven-month) pregnancy of a 15-year-old minor girl, saying that no court can force a woman, especially a minor, to carry a pregnancy against her will.
Invoking Article 142 of the Constitution that allows the Supreme Court to pass any order necessary for doing "complete justice" in a matter pending before it, a bench of justices B V Nagarathna and Ujjal Bhuyan said that the pregnant woman's choice was relevant and that a woman's reproductive autonomy must be accorded the highest importance.
The bench took note of the girl's age, and that the pregnancy was unwanted, and said that continuing the pregnancy was not in the interest of the minor, "particularly since she has attempted to foreclose her life on two occasions". The bench said that continuation of such a pregnancy could have long-lasting repercussions on the minor's mental health, educational prospects, social standing and overall development.
Significantly, the bench said that courts must weigh the circumstances of the case concerning the welfare of the pregnant woman rather than the welfare of the child to be born.
A fundamental right
The bench was of the view that denying such relief would compel the minor to endure irreversible consequences. The court emphasised that such an approach would be contrary to the constitutional and settled principles recognising reproductive choice as a fundamental right. It said the right to make decisions concerning one's body, particularly in matters of reproduction, was an integral facet of personal liberty and privacy under Article 21 (right to life) of the Constitution. The bench said if a woman, carrying an unwanted pregnancy, was compelled to continue it, then her constitutional rights would be breached.
The AIIMS, however, approached the bench urging it to review its order, claiming that the procedure carried a high risk of the child being born alive with congenital disabilities. The hospital cited a fresh medical board opinion, saying the fetus was viable and preterm delivery could cause long-term disabilities and pose grave risk to the minor mother.
Importantly, the AIIMS said if the baby was carried to term, the state could care for it till adoption. The review petition was dismissed on April 29 by the bench, which expressed 'serious concern' over AIIMS, instead of complying with the Supreme Court's directions, challenging it in order to defeat the constitutional rights of the minor.
The AIIMS then filed a curative plea. Parallelly, a contempt petition was filed by the minor's mother against the hospital for defying the court orders.
The curative plea was junked by a bench led by Chief Justice of India Surya Kant, which instead asked the government to consider amending the MTP Act to ensure that the statutory time limit for allowing the procedure does not apply to minor rape victims. The bench, also comprising Justice Joymalya Bagchi, made it clear that neither the Centre nor medical institutions could step into the shoes of the individual in matters of reproductive choice. "Let us not make it a fight between the state and its citizens," said the bench, cautioning against framing the issue as one between "an unborn child and a child". The bench held that the ultimate decision rests with the pregnant individual and her guardians, not with the state or its institutions.
The contempt of court proceedings against AIIMS, meanwhile, were dropped on May 4 after the hospital confirmed it had complied with the directions to medically terminate the pregnancy. While closing the matter, Justice Nagarathna admitted the difficulty of the situation, pointing out that if AIIMS had not carried out the procedure, the women in similar circumstances would depend on unqualified practitioners, risking their lives.
Justice Bhuyan added that the MTP Act was intended to prevent hapless women, afraid of the social consequences, from having to depend on unqualified practitioners.
The case also highlighted, as per the court, the "rising instances of unwanted pregnancies", especially among minor girls. Justice Nagarathna noted that by the time families detect the pregnancy and overcome the initial shock to make a decision, the term often reaches the seven-month mark, creating a legal and medical crisis. "The shock of the girl who is not married and is a minor having become pregnant, and the decision of the family on what to do… This is a mischief. Either a lacuna in the law and tendency in the society. Somebody has to answer it," she said.
Significantly, as recalled by the CJI, the first judgment in the country in such a matter was delivered by him when he was a judge of the Punjab and Haryana High Court in 2009. The case related to a mentally disabled woman lodged in a welfare institution who became pregnant due to repeated rapes. The high court had then held that given the mental condition of the victim or her suspected physical disability, the continuation of the pregnancy would have constituted a grave injury and could lead to more deterioration in the mental health of the victim.
In August 2009, the Supreme Court stayed the high court order and directed that the woman would carry the child to term and that a state-run institution would take care of the woman and the child. "Had it not been stayed," CJI Surya Kant said, "the law would have been settled by now."
Lack of clarity
The courts in our country follow precedents, mostly previous judgments. In this case, the court took note of a 2022 judgment passed by a bench comprising Justices D Y Chandrachud, Surya Kant, and A S Bopanna, allowing an unmarried woman to terminate her 24-week pregnancy. The bench of justices B V Nagarathna and Ujjal Bhuyan also relied on its own decision passed in February 2026, allowing a minor to terminate 30 weeks of pregnancy.
However, there are also a number of judgments where the termination of pregnancy, which crossed the 24-week period, were denied. One such example is from October 2023, where a 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 bench, comprising justices Hima Kohli and Nagarathna allowed medical termination after the mother said 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, claiming that the fetus had a chance of survival. While Justice Kohli recalled the initial order, Justice Nagarathna maintained her stance. Due to the split, the matter went to a larger bench comprising justices Chandrachud, J B Pardiwala and Manoj Misra, which denied the woman's request to terminate her pregnancy, saying that the rights of the unborn child cannot be ignored.
Constitutional courts are often more inclined in allowing the termination in cases where the mother is a minor, or a victim of sexual assault, or the fetus is suffering from the significant deformation. Judges have asked the Union time and again to bring legislation to deal with such situations but there has been no forward movement yet.
