The strong observation came as the Union government sought an urgent listing of its review petition, citing ‘grave’ medical concerns surrounding the late-term termination. However, the bench of justices BV Nagarathna and Ujjal Bhuyan refused to entertain the request, reiterating that the operative order had already been passed and must be followed.

The case brings into focus a complex debate between a woman’s right to choose and the emerging concerns around the survival and future of a viable foetus, as highlighted by medical experts.

Beyond 28 weeks: the question of choice and dignity 

“You have to follow our order or face contempt,” the court told additional solicitor general Aishwarya Bhati, emphasising that compliance was not optional. The judges underscored that the operative portion of the order permitting termination had already been issued on April 24, even though the detailed judgment is yet to be released.

The court also questioned the government’s urgency in filing a review petition before the full judgment was made public. “We released the operative part of the order on the same day. The detailed order is yet to be released and you have filed the review without even waiting for the full order?” the bench remarked, declining to list the plea immediately.

The April 24 ruling itself was significant for the strong constitutional principles it invoked. Allowing the termination despite the pregnancy exceeding the statutory limit under the Medical Termination of Pregnancy Act, the court held that no woman, “and more so a minor child”, can be forced to carry an unwanted pregnancy to term.

Foregrounding reproductive autonomy, the bench stated that compelling a woman to continue such a pregnancy would violate her fundamental rights under Article 21 of the Constitution. “If the pregnant woman carrying an unwanted pregnancy is compelled to continue such a pregnancy, then the constitutional rights of the pregnant woman would be breached,” the court noted.

The judges went further, articulating the consequences of denying such relief. They warned that forcing continuation of an unwanted pregnancy would render a woman “subordinate” to the unborn child and amount to a direct affront to her dignity. The ruling stressed that constitutional courts must prioritise the welfare and wishes of the pregnant woman, especially in cases involving minors, where the psychological and physical impact can be severe.

On Monday, the bench reiterated that its directions must be implemented forthwith, leaving no scope for administrative delay. The minor is to undergo the procedure at AIIMS with all necessary medical safeguards.

The Union government, in earlier hearings, had raised concerns about the risks involved in late-term termination and suggested the possibility of carrying the pregnancy to term with institutional support. However, the court rejected this line of reasoning, cautioning against approaches that overlook the lived realities of the pregnant individual.

It warned that denying termination in such cases, particularly involving minors, could push individuals toward unsafe and illegal abortion practices, thereby increasing health risks rather than mitigating them.

The court also took note of the minor’s psychological distress, including reported attempts to take her own life. It observed that forcing her to continue the pregnancy would have “long-lasting repercussions” on her mental health, education, social standing, and overall development.

Importantly, the bench clarified the role of constitutional courts when statutory remedies fall short. While the MTP Act prescribes gestational limits, permitting abortion up to 20 weeks for all women and extending it in specific categories, the court held that rigid adherence to these timelines cannot override fundamental rights in exceptional cases.

Rejecting a rigid application of statutory timelines, the bench stated that courts exercising writ jurisdiction under Articles 226 and 32 must evaluate each case from the perspective of the woman seeking termination.

The pregnancy in this case, the court noted, arose out of a consensual relationship between two minors and was unequivocally unwanted. The girl had clearly expressed her unwillingness to continue with it and was prepared to undergo the associated medical risks.

‘A double-edged dilemma’

Dr Prof. Abha Majumdar, Director and Head of the Centre for IVF & Human Reproduction at Sir Ganga Ram Hospital, described such cases as a “double-edged” situation, where both the minor’s well-being and the unborn child’s future must be considered.

She noted that while it is important to prioritise the minor’s physical and mental health, especially given her age and limited understanding of consequences, there is also a parallel concern regarding the viability of the foetus at this stage.

“At 28 weeks, it is not really an abortion; it is a preterm delivery. This baby may and will survive,” she said, adding that survival rates improve significantly beyond this stage. “In 28 weeks and above, around 80% babies survive in our country, and by 32 weeks, more than 90% survive.”

Dr Majumdar emphasised that in such late-term cases, the focus cannot remain limited to termination alone. Instead, she argued, there must be a simultaneous plan for the child if it is born alive.

“The court should also give an order as to what will happen to the baby – who will take care of the child, whether it will be managed in a nursery, and who will adopt the child,” she said. “We cannot just disregard the baby because it has no voice.”

She further pointed out that even in cases involving consensual relationships between minors, the pregnancy remains a serious concern due to the girl’s age.

“Whether it is rape or consensual does not matter here. A 15-year-old cannot fully understand the consequences. It is important for her mental and physical health that she should not continue the pregnancy,” she said.

At the same time, she cautioned against overlooking the implications for the foetus. “This baby is viable and will come out alive unless there are abnormalities. We cannot just leave the baby to die. That is not acceptable,” she added.

Dr Majumdar also highlighted the medical complexities involved in adolescent pregnancies. According to her, the body of a 15-year-old is still developing, which increases the risk of complications.

“The organs are not fully developed. The uterus is still developing. In such cases, there are higher chances of preterm delivery, intrauterine growth restriction, and other complications,” she explained.

She noted that while early pregnancies were more common in earlier decades, they often came with risks. “The body may be capable of pregnancy, but it is not always mature enough to carry it safely to term,” she said, adding that full-term delivery can be particularly difficult in such young girls.

Drawing from past cases, Dr Majumdar stressed the need for institutional responsibility. She recalled an instance where doctors sought clarity on who would take responsibility for the baby before proceeding with termination.

“In one such case, the hospital asked the court to first clarify who would look after the baby. Only after that was decided did the process move forward,” she said, underlining the need for a structured approach.

Summing up, she said that while the minor’s choice must be respected, decision-making in such cases must account for both medical realities and the future of the child.

“It is essential to protect the girl from mental and physical burden. But at the same time, we must take a decision for the child as well. Both cannot be ignored,” she said.

Also read: Why one in two pregnancies in India is high-risk | Explained