Medical control to reproductive autonomy

Indian abortion law has long been framed around medical permission. The Medical Termination of Pregnancy Act, 1971 (MTP Act) was enacted as an exception to the existing criminal law provisions on miscarriage and termination. The Act primarily protects registered medical practitioners from prosecution for terminating pregnancies within specified conditions and time limits. This makes the law heavily medicalised and centred on when a doctor may legally terminate the pregnancy. 

Over the past two decades, however, some Supreme Court judgments have begun to ground medical termination of pregnancy in reproductive autonomy, dignity and consent. This does not make medical opinion irrelevant, but it changes the constitutional lens through which the MTP Act must be read. The decision cannot turn solely on medical approval; the woman’s consent and autonomy must remain central.

This move began most clearly in Suchita Srivastava v Chandigarh Administration (2009), where the Apex Court held that reproductive choice is part of personal liberty under Article 21, and includes the right to terminate and continue a pregnancy. The principle was strengthened in X v Principal Secretary, Health and Family Welfare Department (2022), where the court held that reproductive autonomy cannot depend on marital status. It recognised that women’s choices are shaped by family, caste, religion, stigma and social vulnerability, but held that the decision must ultimately belong to the pregnant woman.

A (Mother of X) v State of Maharashtra (2026) and S v Union of India (2026) extend this reasoning into the context of late-term abortions. In both cases, the pregnancies were well beyond the statutory threshold — around 30 weeks in the first case and 28 weeks in the second. Yet, the court refused to let the MTP Act’s time limits (up to 24 weeks in most cases) supersede the constitutional inquiry. It considered the pregnant minor’s unwillingness to continue the pregnancy, and the physical, mental, emotional and social consequences of forced childbirth. In S v Union of India, the court went further, holding that where no effective statutory remedy remains, constitutional courts cannot mechanically defer to statutory limits. The All India Institute of Medical Sciences (AIIMS) then filed review and curative petitions resisting the court’s direction to terminate the pregnancy, citing foetal viability and medical risk. The Supreme Court refused to entertain them, making it clear that AIIMS could counsel the girl and share medical information, but could not decide for her or defeat her constitutional right to choose.

Consent over institutional judgment  

Medical boards undoubtedly play a role in assessing clinical feasibility and risk. However, they cannot become moral gatekeepers of a foetus. In recent years, courts have increasingly deferred to medical boards regarding termination pleas, effectively turning them into the arbitrators of women’s bodily autonomy. The choice is thereby taken away from a woman and entrusted to a third party, with many pleas denied on grounds of foetal viability. When these aggrieved women approach the courts after crossing the statutory threshold, judicial reasoning itself varies. While some courts affirm the progressive jurisprudence of reproductive autonomy, others often end up forcing gestation on the pregnant women, suggesting that the child may be placed for adoption after birth.

Adoption is routinely presented as an “alternative”, as though the injury only lies in foetal termination and not in forced gestation itself. While it might seem like an easier choice, a woman compelled to carry an unwanted pregnancy is forced to undergo months of medical risk, physical transformation, psychological distress, labour pain and social stigma. Therefore, what happens is a complete cycle of suffering induced by institutional indifference long before the child is born.

In this context, Jonathan Herring’s ethics of care framework becomes particularly relevant. He argues that termination, beyond being an individual liberty claim, can also serve a broader public good. In his account, wanted pregnancies represent caring relationships voluntarily entered into and nurtured through emotional and material investment. Contrarily, unwanted pregnancies represent coerced care. The law should hold no ethical interest in coercing forced gestation devoid of consent and support. 

These ethical insights find stark support in empirical evidence. The five-year Turnaway Study in the US found that women denied termination were more likely to report negative emotions, mental health symptoms or suicidal thoughts than those who were given termination access. 

Coordinated change

Historically, medical termination in India has not been framed primarily as a moral or theological question in law and policy, as it has in parts of the West. Instead, it has largely been justified through public health and family planning objectives. The MTP Act further liberalised termination largely to eliminate the practical concerns of unsafe abortions and maternal mortality, as well as the social consequences of unwanted pregnancies. However, India’s present difficulty lies not merely in the letter of law but in the way constitutional expansion is achieved through litigation.

Adjudication of reproductive justice by courts in India is done on a case-by-case basis. Pertinently, a recent dataset examining over a thousand termination petitions before Indian courts found that a significant proportion involved women who were already within the statutory ceiling to access termination. This meant that even though women met the conditions of the MTP Act, medical boards were disallowing termination. Particularly stark is the number of minors and survivors of sexual violence who were compelled to approach courts often due to denials by medical practitioners. The pitfall of such an approach is that courts are simply not accessible to many; even when they are, given that the judiciary does not speak in a single voice, the outcome is really dependent on the composition of the bench and their inclinations. 

This brings us back to the fundamental question: do pregnant women lose personhood once pregnancy crosses the statutory limit? The answer is no. A constitutional democracy committed to dignity and bodily autonomy must ensure that children are born into conditions where they are wanted, welcomed and cared for, not to unwilling mothers coerced into motherhood.

Two changes are, therefore, necessary. First, the progressive jurisprudence on reproductive autonomy must be built into the MTP statute. Concurrently, there is a need for constructive dialogue between lawmakers, the judiciary, the medical fraternity and stakeholders. Unless all these institutional actors work together, pregnant women will never be placed at the centre of decisions about their own reproductive futures. 

(Jwalika Balaji is a Research Fellow and Mandar Prakhar is an Associate Fellow at Vidhi Centre for Legal Policy. Views expressed are personal)