The Debate Over Late-Term Abortions: Exploring the Supreme Court’s Stand on Pregnancy Termination at 26 Weeks


In our society, women hold a pivotal position. It is an undeniable truth that a society’s progress relies heavily on the contributions of women. Just as a plane cannot soar with a single wing, the collective efforts of both men and women are essential for societal advancement. However, throughout history, women have endured suppression, brutality, and the constraints of so-called patriarchal norms that have permeated every facet of our society. The lack of adequate representation in various spheres further compounds these challenges. With the gradual evolution of primitive ideologies and the establishment of the principle of equality before the law, women have found a critical platform to raise their voices against the long-standing societal norms that have held them back.

Following the inception of our constitution, the framers of this foundational document bestowed a multitude of rights upon our citizens, with special consideration for women and even foreign nationals. Article 15(3) of the constitution exemplifies this by empowering the state to enact special provisions for the welfare and protection of women and children. [1]Furthermore, through judicial innovation, the Supreme Court has consistently expanded the rights of women over time. This expansion includes granting women rights related to inheritance, workplace security, and comprehensive legal rights that encompass areas such as divorce and abortion. These legal provisions have played a vital role in promoting gender equality and empowering women to assert their rights and aspirations in our society.

Statutory Rights Of Abortion And Judicial Innovation For Exceptional Circumstances: Balancing Choice And Complex Realities

In the realm of legal rights, the Medical Termination of Pregnancy Act delineates a specific time frame, typically up to 24 weeks, within which a woman may undergo an abortion without necessitating any extraordinary intervention. However, on the 9th of October, 2023, a plea was brought before a two-judge bench presided over by Justice Hima Kohli and B. V. Nagarathna. This plea pertained to the termination of a pregnancy that had progressed beyond the established upper limit of 24 weeks as prescribed by the MTP Act. The unique aspect of this case lay in the woman’s medical condition. She was found to be suffering from postpartum psychosis, a severe mental health disorder. Recognizing the gravity of her condition, the court granted the exceptional permission for abortion, even though it exceeded the limit set forth by the MTP Act. In light of her medical circumstances, the court issued a directive to AIIMS, instructing them to conduct the necessary procedure. After two days one of the judges changed her mind because of AIIMS report which pointing out that the foetus appeared to be viable condition indicating a strong possibility of survival.

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In accordance with the provisions of the aforementioned Act, terminating a pregnancy beyond 24 weeks is typically permissible only under specific circumstances, such as when it is necessary to save the life of the mother or if the foetus exhibits significant physical or mental abnormalities. In the present case, the report provided by AIIMS made it abundantly clear that “there are no substantial foetal abnormalities” present. On the 13th of October, 2023, the petition was heard before a three-judge bench, with Chief Justice of India D. Y. Chandrachur presiding. During the hearing, the court placed particular emphasis on the fact that the petitioner had been grappling with postpartum psychosis. Notably, it was highlighted that the medication she was taking to address this condition posed no adverse effects on the foetus. In light of the AIIMS report and the unique circumstances surrounding this case, the court, regretfully but firmly, rejected the plea for termination of the pregnancy, which had reached 26 weeks.

The petitioner has advanced several compelling arguments in their case. First and foremost, they assert that compelling a woman to continue a pregnancy that endangers her health would constitute a violation of Article 21 and Article 15(3) of the constitution, which guarantee the fundamental right to life and the state’s authority to make special provisions for women and children, respectively.

Moreover, the petitioner draws attention to recent guidelines issued by the World Health Organization (WHO). These guidelines advocate for the complete decriminalization of abortion and the removal of ground-based regulations and gestational limits to ensure equal access to abortion for all women. A key point emphasized by the WHO is the characterization of ground-based controls and gestational limits on abortion as “medically unnecessary policy barriers,” lacking an evidence-based foundation.

An interesting perspective was put forth by Senior Advocate Colin Gonsalve, who argued that international law in this field has evolved to the point where the foetus no longer possesses inherent rights as an unborn child. This assertion underscores the changing landscape of legal thought on this matter.

It is worth noting that in the landmark 1973 case of Roe v. Wade [2]in the United States, the Supreme Court ruled that abortion constituted a constitutional right, allowing for abortion up to the point of foetal viability. Foetal viability is the stage at which a foetus can survive outside the womb, marking a critical factor in the determination of abortion rights.

These arguments collectively highlight the complex legal and ethical considerations surrounding the issue of abortion, underscoring the evolving nature of this legal landscape and the significance of the ongoing legal deliberations.

Despite the compelling arguments put forth, the court ultimately rejected the plea, emphasizing that the situation in India is distinct from that of other countries. In our nation, there exists a recognition of certain rights for the unborn child, and decisions cannot be made devoid of sentiments, in a robotic manner. The court, in rendering any judgment, must consider the unique aspects of Indian jurisprudence. India’s rich tapestry of cultural diversity bestows profound significance upon the concept of pregnancy, with sentiments deeply intertwined.

The court noted that pushing the boundaries of abortion regulation could potentially risk eroding our cultural and civilizational values. Making comparisons with other countries, especially the United States, may not be entirely suitable, as the aftermath of the declaration of abortion as a constitutional right in the U.S., exemplified by the evolving status of the Roe v. Wade decision, serves as a reminder of the complexities and challenges involved.

In a landmark judgment, the case of Nand Kishore Sharma v. Union of India[3], a challenge to the constitutional validity of the MTP Act was rejected. This rejection was based on the argument that the Act does not infringe upon the fundamental right to life of an unborn child. This decision highlights the significance of India’s unique legal and cultural context in shaping the trajectory of abortion rights.

The court’s deliberation made it evident that while the right of a woman to seek a medical termination of pregnancy (MTP) must be recognized and respected, it also necessitates a careful balancing of the rights of the unborn child. Chief Justice D. Y. Chandrachur, during the hearing, emphasized, “we can’t terminate the life of the child.”

On the other hand, Justice Hima Kohli expressed, “my judicial conscience does not permit” the acceptance of the request, as no court would willingly “stop the heartheat of a foetus which has a life”.


In conclusion, based on the extensive arguments discussed, it becomes apparent that in our country, the protection of the rights of the unborn child takes precedence when there are no abnormalities in the foetus. However, in cases of complexity or when the foetus is not free from abnormalities, the autonomy of the woman seeking the MTP should be paramount. In this particular case, where the foetus exhibited no abnormalities and where the woman’s medication for postpartum psychosis posed no adverse effects, the court, after careful consideration, declined the plea for the termination of the pregnancy. This decision underscores the nuanced and sensitive nature of abortion cases and the need to weigh the interests of both the mother and the unborn child.

Author: Nomaan Quasim, Student at Aligarh Muslim University, in case of any queries please contact/write back to us via email to or at  Khurana & Khurana, Advocates and IP Attorney.

[1] The Constitution of India, 1950, art.15(3)

[2] 410 U.S. 113 (1973)

[3] 2005 SCC OnLine Raj 90

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