The Indian Judiciary in accord to ascertain women’s rights or equality rights strives to locate the possibilityof abortion even after the gestation limit of 24 weeks under section 3(2)(b) of the Medical Termination of Pregnancy (Amendment) Act, 2021. What if the child so aborted is born alive? The enigma is to balance — the rights of women i.e., “pro-choice” and rights...
The Indian Judiciary in accord to ascertain women’s rights or equality rights strives to locate the possibilityof abortion even after the gestation limit of 24 weeks under section 3(2)(b) of the Medical Termination of Pregnancy (Amendment) Act, 2021. What if the child so aborted is born alive? The enigma is to balance — the rights of women i.e., “pro-choice” and rights of an abortion survivor i.e., “pro-life.
Be it may any situation — a pregnant minor, a rape victim, or foetuses’ abnormalities — in case abortion is chosen and as a result, the child born is alive, then, in that case, life is something which should not be taken away by any kind of human indulgence. As we say, we do not oppose abortion rather we support a life born thereafter. The courts in India have either consulted the possibility for abortion or allowed to terminate the pregnancy after 24 weeks. The Delhi HC on 6th December 2022 has allowed to terminate the pregnancy of 33 weeks noting that the foetus suffers from cerebral abnormalities, as “it’s a woman’s choice to give birth”, similarly Bombay High Court, recently in the ABC v. State of Maharashtra, Writ Petition (ST) No. 1357 OF 2023 has allowed abortion of a 33 weeks pregnancy and has also quashed the recommendation of the medical board, advising against abortion due to the length of the pregnancy.
Even lately, while adjudicating a plea of abortion by an unmarried 20-year-old B.Tech student, the Supreme Court prospected the probability and had consulted the medical practitioners at All India Institute of Medical Science ( AIIMS) , New Delhi to examine the termination of 29 weeks pregnancy — and as per the report submitted — it was opined that at this stage of pregnancy, there arehigh chances that the child born might be alive. Furthermore, to clarify, doctors at AIIMS believed that the survival rate of the born alive foetus is 80% and once the c-section delivery is done, the child born has to be kept in neonatal care.
Till date, in India, there is no express or implied Rules or Regulations dealing with the rights of the abortion survivor . Who does that child belong to after abortion? Who will be the guardian of the child? What rights does this child have? Does the born-alive foetus have a right to live? Does the born-alive foetus have a right to medical care? Who will pay for the medical expenses which will arise out of treating a premature baby? Do we have a specific report or data maintained as to the status of the foetus after abortion by the medical institutions (both government and private) and also by the State?, are the questions remain unanswered.
Ample of questions have been posed, because we have legislation to govern abortion but no legislation to govern the rights of the womb — either they are left alone todie or either they surviveafter being induced into formaldehyde.
In Florida wherein a girlchild of 23 weeks was thrown into a biohazard bag and thereafter believing itto be trash, thrown into the trash . Another intense and gallant story of Ms Melissa Ohden an abortion survivor, a pro-life speaker and an advocate, who survived an abominable saline abortion. She weighed almost 3 pounds, the doctors’ apprehensions and concerns chased, and despite all of these — today, Melissa is a healthy woman. Rightly indicated by Ms Ib Adedugbe in BMA annual representative meeting: Aborted babies born alive should receive full care, she said that, “It should not matter how a baby is born,”…..“We have a duty to protect the fundamental human rights of a baby once it is considered living.”
Merely treating or rendering a born-alive foetus as a piece of flesh will be against the principles of equitablejustice, and also the Preamble Universal Declaration of Human Rights,1943 states that every human being has inherent dignity.
The time has arrived to leave the anachronism , may be legal, social, or philosophical and should adopt moral reformism in caring for the Born-alive. The House of Representatives in the United States on January 11, 2023, passed a Born-Alive Abortion Survivors Protection Act to bulwark the murderof an infant that is born alive out of an abortion. The act was enacted by keeping in the analysis of Centres for Disease Control and Prevention wherein after analysing the death certificates from the years 2003 to 2014 have found that at least 143 babies who were born alive after an abortion has died. Thus, the act includes the duties and liability of medical practitioners towards a born-alive infant.
After scrutinising the growing cases of abortion even after the gestation limit, assuming that only half of the cases are reported to the Judiciary and half remain under the steel sky — in that case, at present, a need for legislation or recognition under the Constitution of India is indispensable.
The Supreme Court of India, as the parens patriae may need to decode the Article 21 of the Indian Constitution apropos to the child born alive after abortion. A foetus or a child born alive after an abortion have a right to life with dignity and rights regarding the custody/ guardianship and also the medical expenses accrued while treating a premature baby are to be ascertained. The Supreme Court recently, while allowing the plea for abortion of 29 weeks pregnancy by a 20-year-old B-tech student (supra) has further opened the new doors to adoption laws by opining that the child born aliveafter the abortion will be given in adoption to a parent registered with Central Adoption Resource Authority, though passed exercising the exceptional powers of the Court.
Therefore, adoption of an abortion survivor can be an option, but practically there are only a few cases which come in public rest are crushed as that of an unwanted bush. In that situation the State should be made a responsible guardian and a custodian of an abortion survivor.
After examining the 2023 act of the United States, a similar law can also be introduced in India — to increase the liability of a doctor/medical practitioner in performing their duty diligently and morally towards treating the abortion survivor. Maintenance of data/report by the medical institution and/or the State as regards to the status of the foetus in case of abortion — as a result, quietus the illegal abortions or abortion without permission. The penumbra will be luminated, the day abortion survivor will be positively treated!!
The authors are Advocates in the Supreme Court of India. Views are personal.