Abortion, Autonomy and the 2021 Amendment

In one line

The Constitution gives the decision to the woman and the statute gives it to her doctor, and the whole of this topic is the distance between those two sentences.

In the wording a student can write in an exam: the constitutional position is that a woman's right to make reproductive choices is a dimension of personal liberty under article 21, exercisable to procreate as well as to abstain, the crucial consideration being respect for her privacy, dignity and bodily integrity; the statutory position is that a termination is lawful only where a registered medical practitioner is of the opinion, formed in good faith, that a listed ground exists; and the Medical Termination of Pregnancy (Amendment) Act 2021 widened the statute considerably without altering that basic allocation of the decision.

The constitutional right

Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235, (2009) 9 SCC 1, decided on 28 August 2009.

Facts. A woman described in the proceedings as mentally retarded, an orphan in the care of a government institution in Chandigarh, was found to be pregnant following an assault. The Administration sought the High Court's permission to terminate. An Expert Body reported in favour of continuing the pregnancy, and she had herself expressed a willingness to bear the child. The High Court nevertheless directed termination, by its order of 17 July 2009.

Held, on consent. The termination could not be permitted without her consent. Her reproductive choice was to be respected notwithstanding her lack of understanding of the sexual act, apprehensions about her capacity to carry the pregnancy to term and about her assumption of maternal responsibilities, since the Act itself contemplates that the consent of a woman found to be mentally retarded is required.

Held, on the right. A woman's right to make reproductive choices is a dimension of personal liberty under article 21. Reproductive choices may be exercised to procreate as well as to abstain from procreating, the crucial consideration being that her right to privacy, dignity and bodily integrity should be respected. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to full term, to give birth and to raise children.

Held, on limits. In the case of pregnant women there is a compelling State interest in protecting the life of the prospective child, so termination is permitted only where the conditions of the applicable statute are fulfilled, and the provisions of the Act may be viewed as reasonable restrictions on the exercise of reproductive choices.

Why it matters here. Three things follow, and an answer should take them in order. The right exists and is constitutional. It runs in both directions, so it is not a right to terminate but a right to decide. And the statute is a reasonable restriction on it, which means the statute is measured against the right rather than being the source of it.