Of reproductive autonomy, equality

Given how closely intertwined birth and adoption are, the time is now ripe for constitutional courts and legislatures to fix the patchwork of conflicting abortion judgements, writes Kanav Narayan Sahgal

Over the past few decades, there have been significant global advancements regarding abortion and adoption rights. As of 2023, almost one billion women and girls, accounting for approximately 60% of the female population, live in jurisdictions that generally allow abortions. However, the remaining 40%, or 600 million females, reside in jurisdictions with stringent abortion laws, with 91 million of these women living without any abortion rights whatsoever.

Last year, both the United States and India made headlines for their opposing positions on abortions. Despite both being constitutional democracies committed to the rule of law, the US eliminated the constitutional right to abortion, while India reinforced and expanded its constitutional ambit. Meanwhile, same-sex parenting and adoption are on the rise in jurisdictions that have decriminalised same-sex conduct and allowed some form of legal recognition for same-sex couples. However, many jurisdictions, including India, do not grant any legal recognition to same-sex couples or same-sex parents. Nevertheless, one hopes that the courts will help make changes in this regard.

The Supreme Court of India made headlines for its verdict in X vs The Principal Secretary, Health and Family Welfare Department, Govt of NCT (2022), in which the Court made several landmark pronouncements. One of the key points was adopting a purposive approach to interpreting the Medical Termination of Pregnancy (MTP) Amendment Act, 2021, granting unmarried women the same right to terminate a pregnancy as married women up to 24 weeks, provided there is a change in their relationship status. The Delhi High Court had initially denied the petitioner an abortion as her pregnancy had exceeded the 20-week mark, and she was unmarried, but the Supreme Court overruled the decision.

Although many hailed X vs The Principal Secretary as progressive, there is still a long way to go. A 2018 report by the Centre for Reproductive Rights revealed that legal barriers and misconceptions about the law still affect women's ability to terminate their pregnancies safely. Although India's abortion laws are some of the most progressive globally, they still impose unreasonable restrictions on women seeking abortions after 20 weeks. For instance, requiring judicial permission to medically terminate a pregnancy after the 20-week mark is not necessary under any circumstance under the law, even for women who are not included in Rule 3B of the Medical Termination of Pregnancy (Amendment) Rules, 2021. Furthermore, the MTP Act's link with the Indian Penal Code creates a chilling effect, leading to a fear of criminal prosecution among registered medical practitioners. As a result, the courts have seen almost 25 cases between 2015 and 2018 in which women have sought court permission to terminate their pregnancies, with mixed verdicts.

Three recent cases highlight this problem rather well. In Minor R Thr Mother H vs State Of Nct Of Delhi & Anr. (January 25, 2023), the Delhi High Court ruled in favour of the petitioner, a 14-year-old minor girl, who sought a medical termination of her pregnancy at the 25-week mark as she was a victim of sexual assault and rape. The minor and her mother discovered her pregnancy at 24 weeks and 5 days, but the medical board denied her an abortion on the grounds that it exceeded the 24-week mark for even survivors of rape. Therefore, judicial intervention was sought.

In Abc vs State Of Maharashtra (20 January 2023), the Bombay High Court also ruled in favour of the petitioner, a married woman who sought the medical termination of her 33-week pregnancy due to severe foetal anomalies discovered later on in her pregnancy. The court noted that the medical board that refused her abortion was "wholly misdirected" because the woman fulfilled the criteria for medical termination of pregnancy, even post the 24-week mark. And finally, in P vs Union Of India (February 2, 2023), the Supreme Court of India denied a 20-year-old unmarried woman a medical termination of pregnancy at the 29-week mark. This was owing to a report by the All India Institute of Medical Sciences (AIIMS) that pointed to a high possibility of the foetus being alive. Hence, the court directed AIIMS to ensure the delivery of the child at no cost to the petitioner and directed the Central Adoption Resource Authority (CARA) to facilitate the adoption of the baby despite the woman’s initial insistence to abort the foetus.

These three verdicts depict the case-by-case approach taken by India’s constitutional courts to determine a woman’s right to medically terminate her pregnancy. While the courts do consider a woman's social and economic background before rendering a decision, it appears that the real authority lies with the medical board. The medical board's determination is either approved or denied by the court, even though the MTP Act does not require medical boards to seek judicial permission to perform an abortion at any stage of pregnancy. As far as adoptions are concerned, CARA is the apex body for the legal adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.

Regulation 5, which governs the eligibility criteria for prospective adoptive parents, states that “No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption”. This automatically disqualifies all gay couples from adoption since gay people do not have the legal right to marry in India and cannot legally prove that they were ever in a “marital relationship”. This is disquieting given extensive research showing little to no difference in development outcomes of children raised by same-sex couples and opposite-sex couples.

According to a widely cited 2001 paper in the American Sociological Review, sociologists Judith Stacey and Timothy Biblarz looked at both sides of the debate and found that heterosexism (a system of attitudes, behaviours, and practices that prioritises and assumes heterosexuality as the norm, while marginalising and discriminating against non-heterosexual people) had placed inordinate constraints on most research on the effects of gay parenthood.

Despite that, a meta-analysis of 18 psychological studies conducted between 1981 and 1998 found "no differences on any measures between the heterosexual and homosexual parents regarding parenting styles, emotional adjustment, and sexual orientation of the child(ren).”

Given how closely intertwined birth and adoption are, the time is now ripe for constitutional courts and legislatures to fix the patchwork of conflicting abortion judgements and clarify a proper and sensible standard that would allow for women and registered medical practitioners to medically terminate pregnancies safely, securely, and without the fear of criminal prosecution. In case medical termination is not possible, the government should ensure that all types of families, not just cisgender and heterosexual ones, have the opportunity to adopt.

(The author is a Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])