Supreme Court granted abortion. One email from a doctor undid it.

Two judges, one woman, and a pregnancy at 26 weeks: the Supreme Court splits on who decides

She already had two children, both born by Cesarean section. She became pregnant again during lactational amenorrhea — a failure of family planning. She was suffering from postpartum depression and was on medication. By the time she reached the Supreme Court of India, her pregnancy had crossed the 24-week legal limit for termination. She asked for permission to end it. On 9 October 2023, a two-judge Bench of Justice Hima Kohli and Justice B.V. Nagarathna allowed her to do so. The next day, a member of the Medical Board at AIIMS emailed the Additional Solicitor General, raising concerns about the viability of the foetus — now approximately 26 weeks, weighing 886 grams — and asking whether feticide should be performed, what to do if the baby survived, and how adoption would work. The Union of India immediately sought recall of the 9 October order. On 11 October 2023, the same Bench split. Justice Kohli's judicial conscience did not permit termination in light of the new information. Justice Nagarathna held that the woman's reproductive autonomy must prevail. The matter now goes to a larger bench. The stakes could not be higher: who decides whether a woman carries an unwanted pregnancy to term — the woman, the doctor, or the court?

The woman who walked into the Supreme Court

The petitioner invoked Article 32 of the Constitution — the Supreme Court's original writ jurisdiction — seeking directions for medical termination of her pregnancy beyond 24 weeks under the Medical Termination of Pregnancy Act, 1971. The Court constituted a Medical Board at AIIMS, as the Act requires. The Board submitted its report on 6 October 2023. On 9 October 2023, after considering that report, the Court allowed termination and issued directions for the procedure to be performed at a Government hospital.

That should have been the end of it. It was not.

The very next day, one member of the Medical Board sent an email to the Additional Solicitor General. The email raised concerns: the foetus was viable; what should be done about feticide; what if the baby survived the procedure; what about adoption. The Union of India, on receiving this communication, immediately moved a recall application before the Supreme Court. The Bench reconvened on 11 October 2023.

What the Medical Board member's email actually said

Justice Kohli, in her main order, noted the sequence with some dismay. The Medical Board member's concerns — about foetal viability, about the possibility of the baby being born alive, about the logistics of adoption — ought to have been part of the original report, she observed. "This ought to have been part of the earlier report for the Court to have had a correct perspective," Justice Kohli wrote. The email, sent to the ASG rather than incorporated into the Board's formal submission, created a procedural mess. The Court had already acted on the report. Now it was being asked to reconsider.

Justice Kohli's judicial conscience, she said, did not permit her to allow the termination to proceed in light of this new information. She favoured recalling the 9 October order. The divergence, she clarified, was limited to the operative paragraph of that order — the part that actually directed the termination. The rest of the order would stand.

The dissent: reproductive autonomy is not negotiable

Justice Nagarathna saw it differently. And she said so with force.

She began with the binding precedent: X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321, a three-judge bench decision. That case held that reproductive rights include "the constellation of freedoms enabling a woman to decide on all matters relating to sexual and reproductive health." It held that reproductive autonomy requires that "every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without third-party consent." And it held that "the decision to carry pregnancy to full term or terminate it is rooted in bodily autonomy and decisional autonomy."

Justice Nagarathna applied that precedent squarely. She held that when a pregnant woman has made a wilful and conscious decision to medically terminate her pregnancy, "whether the child to be born is viable or would be a healthy child are not relevant considerations. The focus must be on whether the pregnant woman intends to give birth or not."

She went further. A foetus, she held, is dependent on the mother and "cannot be recognized as an individual personality separate from the mother." Forcing the continuation of a pregnancy that endangers the mother's physical or mental health, she said, is contrary to Articles 21 and 15(3) of the Constitution. The right to reproductive health, being a woman's human right, includes the right to an abortion. A woman forced into an unwanted pregnancy, she observed, "would experience physical and mental trauma and lose opportunities in life including employment."

Justice Nagarathna also noted that the Medical Board's original report had already been considered by the Court. The email from one member, sent after the order, could not be allowed to override the woman's decision. She rejected the recall application.

The split: what happens when two judges disagree

The Bench was evenly divided. Justice Kohli favoured recall; Justice Nagarathna rejected it. The divergence was limited to the operative paragraph of the 9 October 2023 order — the part that actually directed the termination. The rest of the order was maintained.

The joint order directed: "In view of the cleavage of opinion between the members of the Bench, the Registry is directed to place the application before Hon'ble the Chief Justice of India for being referred to a larger Bench."

That is where the matter stands. The woman's pregnancy continues. The larger bench will now decide.

The doctrine that matters: whose body, whose choice?

This case is not about the Medical Termination of Pregnancy Act alone. It is about the constitutional architecture of reproductive autonomy. Justice Nagarathna's ratio is clear: when a woman has made a conscious decision to terminate, foetal viability is not the relevant consideration. The relevant consideration is whether the woman intends to give birth. The foetus has no separate constitutional identity from the mother. Forcing an unwanted pregnancy on a woman is contrary to Articles 21 and 15(3).

Justice Kohli did not disagree with this doctrine in principle. Her concern was narrower: the Medical Board's post-order communication raised new facts about viability that she had not considered when she allowed the termination. Her judicial conscience, she said, could not permit the procedure to go ahead without addressing those facts.

The tension is real. On one side is the woman's autonomy, already exercised, already affirmed by the Court. On the other side is the Court's duty to decide on a complete record. The split reflects a genuine jurisprudential dilemma: how do you balance a woman's constitutional right to reproductive choice against the Court's institutional need for accurate information?

THE PLAY: In any late-term MTP case, the Medical Board's report must be comprehensive — including all members' views on viability, feticide, and neonatal care — so that the Court and the woman have the complete picture before any order is passed. A post-order email from one Board member cannot be allowed to unsettle a judicial order that has already been acted upon.

What this means for practitioners

For advocates handling MTP cases, this split verdict sends a clear signal: the Medical Board's report is the single most important document in the case. It must be exhaustive. It must include every member's opinion. It must address viability, feticide, neonatal survival, and adoption logistics — all in one consolidated report. If a Board member has concerns, those concerns must be in the report, not in an email to the ASG the next day.

For the woman, the uncertainty is agonising. Her pregnancy continues while the larger bench deliberates. The clock is ticking. Every day that passes makes the procedure riskier and more traumatic.

For the Court, the split raises a deeper question: who decides? The woman, after counselling? The Medical Board, after examination? Or the Court, after receiving a report that may be incomplete?

Justice Nagarathna's obiter dicta offered a procedural standard for the future: "In pregnancies over 24 weeks, an experienced obstetrician must ensure the procedure is clearly mentioned in the Medical Board's recommendation/report and explained to both the Court and the pregnant woman. If despite counselling, the woman is determined to terminate, primacy must be given to her decision by all concerned including courts."

She also added a limiting observation: "This is not to say that in every case of unwanted pregnancy, courts ought to exercise jurisdiction and order termination. It depends on the facts of each case." The ratio is not an absolute mandate. It preserves judicial discretion.

The bottom line

Until the larger bench decides, the law in India is this: a woman's reproductive autonomy under Articles 21 and 15(3) is constitutionally protected, and foetal viability is not a trump card — but the Court must decide on a complete record, and a Medical Board's post-order email can reopen a case that seemed closed.