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The Ethical Dilemma of Abortion Rights in India

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- Supreme Court hearing plea to terminate 26-week pregnancy – Oct, 2023.
The Supreme Court declined a married woman’s plea to abort her 26-week fetus, stating she cannot claim an “absolute right” given the pregnancy poses no danger to her life or the fetus as per medical reports. A three-judge bench headed by the Chief Justice of India asserted that at such an advanced stage, the woman cannot demand termination as an “overriding right” considering the health and interest of the viable fetus. This ruling highlights that while favoring reproductive autonomy, Indian law balances it with the viable fetus’ interests after viability.
The ethical dilemma surrounding abortion rights has come to the forefront in recent news with the Supreme Court of India hearing a plea to terminate a 26-week pregnancy. A woman approached the court seeking permission to abort the fetus after the 20-week gestational limit for legal abortion under the Medical Termination of Pregnancy (MTP) Act.
This case has renewed debate on India’s abortion laws and the balance between women’s reproductive autonomy and the interests of the viable late-term fetus. The hearing raises complex ethical questions about whose rights should prevail when the mother’s right to terminate her pregnancy clashes with the unborn child’s chances of survival if born.
The judiciary’s role in adjudicating such personal reproductive decisions also involves ethical ramifications. This case provides an apt context to examine the multifaceted ethical issues entangled in India’s abortion discourse.
Supreme Court Highlights Balancing of Rights in Abortion Case
The Supreme Court recently emphasized the need to balance a woman’s reproductive rights with the rights of the unborn child while hearing a plea for terminating a 26-week pregnancy. The court deliberated on the ethical dilemma of ending a late-term pregnancy versus the health risks to the viable fetus if born. Though prioritizing a woman’s autonomy, the judges urged considering waiting for a few more weeks for the child’s better chances. The case highlights the complex interplay between women’s rights and the interests of the developing fetus under India’s abortion laws. It underscores the nuanced ethical approach needed in adjudicating such deeply personal reproductive choices.
Rights of an Unborn Child
In this case, the Supreme Court discussed the rights of the unborn child while hearing a plea to end a 26-week pregnancy. The Chief Justice of India accepted India’s pro-choice abortion laws. These favor a woman’s right to choose over the unborn child’s rights. However, the idea of a fetus being able to survive (fetal viability) has brought a new perspective. This is different from the US approach of relating viability to surviving outside the womb. Some experts say after 20 weeks, Indian law allows doctors, not women to decide on abortion.
Legally, the unborn child has limited rights in India. But some laws like banning sex-determination tests and postponing death penalty for pregnant women consider rights of the unborn child. This shows the complex balance between women’s rights and the interests of the developing fetus under Indian law.
Abortion rights
Sections | Details |
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Abortion Laws in India |
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Women’s Reproductive Rights |
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Arguments For and Against |
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Rights of the Unborn Child |
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Ethical Considerations |
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Balancing Competing Interests |
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Key Takeaway | Complex issue requiring ethically balanced position upholding women’s autonomy and access along with a rights-based approach to abortion. |
MTP Amendment Act
- Key features:
- Gestational limits increased
- Categories of women eligible for abortion until 24 weeks
- Failure of contraception now grounds for abortion until 20 weeks for unmarried women
- Medical boards for abortions beyond 24 weeks
- Increased gestational limit for medical abortion to 9 weeks
The Medical Termination of Pregnancy (Amendment) Act, 2021 (MTP Amendment Act) amended India’s abortion law to expand access to safe and legal abortion. Some of the key features of the MTP Amendment Act are:
Gestational Limits Increased: The MTP Amendment Act increased the upper limit for termination of pregnancy. Under the amended law, abortion can be performed by a registered medical practitioner, up to 20 weeks of gestation, if done by one doctor. Previously, the limit was 12 weeks. Between 20-24 weeks, if done by two doctors for certain categories of women. Beyond 24 weeks, abortions can be allowed if advised by a Medical Board in cases of substantial fetal abnormalities.
By increasing the gestational limits, the MTP Amendment Act allows more time for women to access abortion services. This is important especially for vulnerable women who face barriers in accessing timely care.
Expanded Eligibility: The MTP Amendment Act specifies categories of women who are eligible for abortion up to 24 weeks of gestation. This includes survivors of sexual assault/rape/incest, minors, widows, women with physical disabilities, mentally ill women, fetal abnormalities, and women in emergency situations.
Failure of Contraception: Earlier, failure of contraception was a ground for abortion only for married women. The amended law expands this to “any woman or her partner” up to 20 weeks of pregnancy. This makes abortion accessible to unmarried women in case of contraceptive failure.
Medical Boards: The MTP Amendment Act provides for state-level Medical Boards who can approve abortions beyond 24 weeks in cases of substantial fetal abnormalities. However, experts have cautioned that Medical Boards could potentially create barriers to timely access.
Increased Limit for Medical Abortion: The amended law increases the gestational limit for medical methods of abortion from 7 weeks to 9 weeks. This facilitates access to medical abortion pills through the health system.
The MTP Amendment Act reflects a step forward in expanding legal access to abortion and upholding women’s reproductive rights. However, restrictions based on marital status and gestational limits still persist. There are also concerns regarding the impact of additional requirements like Medical Boards on timely access to abortion care.
Women’s Reproductive Rights
- Right to access abortion and reproductive health services
- Right to control one’s reproductive functions
- Right to make reproductive choices free from coercion, discrimination, violence
- Right to safe and legal abortion
- Right to be protected from forced pregnancy
Women’s reproductive rights encompass multiple dimensions including the right to access abortion and reproductive health services, the right to control one’s reproductive functions, and the right to make reproductive choices freely. Some key aspects include:
Right to Access Services: International conventions recognize women’s right to access reproductive health services including abortion care. Restricting access to abortion infringes on women’s right to health and life. The CEDAW Committee advises that states should ensure access to quality abortion services and not impose arbitrary barriers.
Bodily Autonomy: Reproductive rights also include the right to control one’s reproductive functions free from coercion. Women have autonomy over their bodies and the right to make decisions regarding continuing or terminating pregnancy.
Freedom from Discrimination: Women have the right to make reproductive decisions free from discrimination, stereotyping, or violence. Limiting abortion access specially impacts marginalized women and entrenches gender and socio-economic discrimination.
Safe and Legal Abortion: Ensuring access to safe abortion is part of state’s obligation to protect women’s life and health. According to WHO, restricting access leads to unsafe abortions and preventable maternal mortality and morbidity. Abortion laws must focus on rights, not criminalization.
Protection from Forced Pregnancy: International conventions consider forced pregnancy a human rights violation. Continuing an unwanted pregnancy infringes on women’s right to freely decide the number and spacing of children under CEDAW. Forcing women to carry pregnancies violates their human rights.
Therefore, framing abortion access within a reproductive rights and social justice framework is critical. Women’s autonomy, choice, freedom and well-being should be at the center rather than restrictive laws. Upholding reproductive rights requires reforming legal and policy barriers to safe abortion access.
Arguments for and against bodily rights in the abortion rights debate
Here is a detailed table on arguments for and against bodily rights in the abortion debate:
Arguments in Favour of Bodily Rights | Arguments Against Bodily Rights |
Right to Life of Mother: A woman, as a moral person, has a right to life that should take precedence over a fetus which lacks personhood legally and morally. | Right to Life of Unborn Child: The fetus, as an innocent human life, has a right to life from conception. Abortion unjustly ends this life. |
Bodily Autonomy: A woman has autonomy over her body and the right to decide whether to continue a pregnancy or not. The fetus’ rights don’t supersede her bodily integrity. | Moral Conduct: Abortion is morally wrong because it kills an innocent human life. Irrespective of legality, abortion is unethical. |
Legal Personhood: A fetus lacks legal personhood status as per law. It does not meet criteria like consciousness, reasoning, self-awareness. The woman, as a person, has rights that override the fetus. | Future Like Ours: The fetus has a valuable future unless aborted. Abortion deprives it from a life it could have had, which is morally wrong. |
Health Risks: Carrying unwanted pregnancy can jeopardize woman’s mental and physical health. She has a right to protect her health. | Adoption: Instead of abortion, adoption can ensure the child lives. Aborting deprives potential life when other options exist. |
Social Circumstances: Unwanted pregnancy can cause socio-economic hardship for woman. She should be able to abort due to her circumstances. | Disability Discrimination: Aborting fetuses with disabilities promotes eugenics. It unfairly devalues disabled lives. |
This table illustrates the contrasting stands on bodily rights in the ethical debate surrounding abortion and reproductive rights. The pro-rights view prioritizes woman’s autonomy, while the anti-abortion view prioritizes protection of the unborn fetus. There are reasonable ethical arguments on both sides of this complex issue.

Unborn Baby Rights
- No legal recognition and rights afforded to foetus under law currently
- MTP Act exempts doctors from criminal liability for terminating pregnancy
- Conflict between mother’s rights vs unborn child’s rights
Under Indian law, there is currently no legal recognition of the rights of the unborn fetus. The rights discourse is focused primarily on the pregnant woman or mother.
No Legal Personhood: Legally, the fetus does not have independent personhood and associated rights. It is not treated as a separate legal entity from the pregnant woman. The law does not identify the start of legal personality during gestation.
Exemption under MTP Act: India’s abortion law, the Medical Termination of Pregnancy (MTP) Act, creates an exemption from criminal liability for registered medical practitioners who terminate pregnancies under prescribed conditions. The MTP Act does not confer any statutory rights to the fetus.
Conflict with Women’s Rights: The legal position creates a potential conflict between the rights of the pregnant woman and the unborn fetus. As the woman has recognized rights to life, health and reproductive autonomy, exercising these rights through abortion comes at the cost of the potential life of the fetus.
However, prioritizing fetal rights over women’s reproductive autonomy would infringe on women’s bodily integrity, choice and access to abortion care. It could also disproportionately impact vulnerable women who lack resources and access.
The debate centers around whose rights should prevail when the rights of the potential life of the fetus clash with the rights of the pregnant woman. This involves complex ethical considerations that have reasonable arguments on both sides. Legally conferring rights to the unborn fetus would fundamentally reshape the abortion discourse.
Ethical Issues
- Mother’s mental health if forced to continue pregnancy vs life of viable foetus
- Social and financial circumstances of mother
- Health of unborn child if born
- Role of courts and medical boards in what is a personal decision
The decision to terminate a pregnancy involves weighing complex ethical considerations regarding the mother, the fetus, and their respective rights. Some key ethical issues include:
Maternal Mental Health: Continuing an unwanted pregnancy can negatively impact the mental wellbeing and psychological health of the mother. This has to be balanced against potentially terminating a viable fetus later in pregnancy. There are ethical dilemmas regarding whose life and health should be prioritized.
Social Circumstances: A woman’s socio-economic resources and capacity to raise a child also pose ethical questions. Aborting due to lack of financial resources or social support raises issues of discrimination against lower-income women.
Health of Child: If the fetus has medical complications or abnormalities, the quality of life the child would have if carried to term is an ethical consideration. The degree of suffering and disability involved should be weighed by the mother.
Role of Institutions: Involvement of courts and medical boards to adjudicate on abortions, especially later in pregnancy, can be seen as ethical overreach. A personal reproductive decision is removed from the woman’s autonomy.
There are reasonable ethical stands on both sides of this complex issue. There are benefits and risks to giving primacy to either the mother’s rights or the unborn child’s rights. Broader social values also shape ethical perspectives on abortion. Ultimately, upholding women’s reproductive autonomy and access with a rights-based approach remains important.
Final Thoughts
- Complex issue with reasonable arguments on both sides
- Need to balance rights of mother and unborn child
- Reform abortion laws to focus on reproductive rights and access
In conclusion, the issue of abortion involves complex ethical dilemmas with reasonable arguments both in favor of abortion rights and against termination of pregnancy. There is a need to balance the rights of the mother and the unborn child, though legally the fetus does not have recognized rights currently. The discourse requires moving beyond absolute stands on either side to find an ethically nuanced position. Ultimately, reforming abortion laws to focus on upholding women’s reproductive autonomy and access, eliminating restrictions and barriers, and providing safe abortion care within a rights-based framework can help advance gender equality and social justice.