Reimagining Reproductive Rights Jurisprudence in India: Reflections on the Recent Decisions on Privacy and Gender Equality from the Supreme Court of India

In July 2018, twenty-year-old Sarita approached the Supreme Court of India seeking permission to terminate her twenty-five-week pregnancy. Sarita was a domestic violence survivor and suffered from other health complications due to epilepsy. She had learned of her pregnancy at seventeen weeks and her petition stated that she had become pregnant as a result of her husband’s refusal to use contraceptives. At twenty-one weeks, when she first approached the Bombay High Court, Sarita was just one week over the legal limit specified in the 1971 Medical Termination of Pregnancy (MTP Act), which permits termination of pregnancies on certain grounds up to twenty weeks. When the court refused permission, Sarita appealed to the Supreme Court, citing a recent Supreme Court decision — Justice K.S. Puttaswamy (Retd.) v. Union of India — which recognized the right to privacy as a fundamental right in India. However, she was devastated when, at twenty-five weeks pregnant, the court issued a one-line order simply denying her permission for an abortion. Troublingly, the two-judge bench stated that her request amounted to murder and that the “unborn child” should have been represented in court instead of Sarita. The bench also questioned Sarita’s competency to make decisions, claiming that if she had listened to the foetal heartbeat, she would have changed her decision, further implying that Sarita would ultimately come to “regret” having an abortion if she chose to reconcile with her husband in the future