The Curious Case Of Fetal Viability

The nucleus of the concept of abortion lies in the debate of the rights of an unborn child as against the rights of women to bodily autonomy and exercising one’s choice. It was only in the 20th century that the rights of women started encompassing the idea of “bodily autonomy and reproductive choice”. In the last 30 years, over 60 countries have made strides with respect to framing abortion laws and overlooking its effective implementation. The laws vary with respect to the requirement of “gestational period” i.e., how far along the pregnancy is, consideration of economic and social grounds impacting pregnancy, and preservation of health contrasted with preservation of life. It is absolutely prohibited in 22 countries. A shocking addition to the list of countries that prohibit abortion, happened last year when the USA overturned its progressive judgment on abortion- Roe v. Wade. In a world where the US is known to be the heralded of libertarian values of personal liberty, it has retrogressed the domain of reproductive and abortion rights by overturning the deciding case on abortion rights, taking away from women, the substantive right to safe abortion and liberty to exercise their reproductive choice.

On the other hand, India has only made progress in securing a safe and broad spectrum of abortion rights for women. In 2021, India amended the Medical Termination of Pregnancy Act of 1971 to increase the upper gestational limit for legal abortion from 20 weeks to 24 weeks for specific categories of vulnerable women, and remove it altogether in cases where the fetus is diagnosed with substantial abnormalities by a medical board.

A peculiarity in the issue of abortion rose again when a married woman, pregnant for 26 weeks, approached the Supreme Court for a termination of pregnancy. It is peculiar for the reason that the Medical Termination of Pregnancy (Amendment) Act 2021 was introduced for the very reason that there were several writ petitions seeking judicial authorization for termination of pregnancy that goes beyond the prescribed upper gestational limit of 20 weeks, following which the Parliament brought an amendment to revise the upper gestational limit. Within 2 years of the amendment, the Indian judiciary again found itself at the crossroads for determining the upper gestational limit. This brings us to the core question of abortion rights- how to balance women’s right to a safe abortion with the rights of an unborn child.

A Special bench comprising Justice Hima Kohli and Justice BV Nagarathna was constituted to decide the termination of the 26-week pregnancy. The bench passed an order allowing the petitioner to terminate her pregnancy. The grounds on which the order was passed in favour of the mother, appertained to her mental health condition, financial, and emotional background. The mother is reportedly suffering from post-partum depression. The Bench eruditely held that “mental health” under Section 3(2) of the MTP Act is an all-encompassing condition and has a broad connotation. It invoked Section 5 of the Act which permits a woman to terminate her pregnancy which has passed beyond the upper gestational limit of 20 weeks, in circumstances where it becomes imperative to save her life. Section 5 has been interpreted liberally and expansively by the Indian judiciary in order to safeguard the rights of women. A termination of pregnancy can be permitted beyond 20 weeks on account of a delay in pregnancy or a change in the circumstance as per Rule 3(B) of the MTP Rules, 2023. The court was also informed that the petitioner had used Lactational Amenorrhea, a contraception since she was breastfeeding (for her 2nd child, who is one year old). The contraception had failed despite having a 95% success rate and resulted in a third pregnancy. Conceptions as a result of failure of lactational amenorrhea were considered as a category for women permitted to terminate pregnancy beyond 20 weeks, by the expert committee which drafted the MTP Rules, 2023.

The petitioner’s rights to be aborted were derived from the aforementioned sections of the MTP Act and MTP, Rules 2023. The court granted the petitioner relief along with a direction to AIIMS, Delhi to admit the mother for the procedure and use the incubation method, if necessary.

A predicament arose when the Union of India filed a recall application for the order passed by the special bench. Union of India, represented by Additional Solicitor General, Aishwarya Bhati, presented the bench with a new medical report by the medical board which stated that the fetus had a viable chance of survival. It was argued by the counsel for the Union that there is a viable baby on the other side and for this reason, the absoluteness of primacy given to the mother to decide must be reconsidered.

The bench found itself in dire straits and was compelled to rethink the previous order permitting the termination. Justice Nagarathna held that the order is not required to be recalled because preference should be given to the mother’s interests, and the question of the viability of the fetus being born or unborn does not arise here. Whereas, Justice Hima Kohli expressed her reservations about passing an order terminating the pregnancy in light of the new report filed by the medical board and presented by the Union of India. She also stated her disappointment with regard to the timing of the new report and remarked that it should have been a part of the report presented to the court before passing an order permitting the termination. Justice Kohli also pointed out that the possibility of the fetus being born alive was given consideration and therefore the order of termination suggested the process of incubation and other necessary medical precautions to be taken by the medical board. However, she differed with Justice Nagarathna’s opinion and remarked that the matter be placed before a higher bench.

The matter came before a bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra. Advocate Amit Mishra, representing the petitioner asserted before the bench that the mother sought termination for the reason that she already had two children and this pregnancy was not planned. She was undergoing treatment for post-partum depression and was on medications for the same. The legitimacy of the prescription of medicines was questioned by the bench and AIIMS was directed to conduct an inquiry about drugs prescribed for post-partum depression and its effect on a full-term pregnancy and examine the mental, emotional, and physical condition of the mother.

Counsel for the Union argued that the termination of pregnancy has crossed the gestational limit of 24 weeks, it can be terminated only in exceptional cases, as mentioned in the MTP Act, and in this case, the unborn child was healthy and viable. It was also argued that the medical board’s opinion which affirmed that the foetus is viable and healthy, must be given primacy when deciding the case. The counsel took recourse to the principle of “Hobson’s choice”, which posits that if a fetus were to be delivered pre-term, once it is declared healthy and viable, the fetus would then be deprived of a fighting chance as it might be born with severe physical and mental abnormalities.

The bench, after hearing both sides, ruled that the pregnancy had crossed the upper gestational limit of 24 weeks, and permitting a termination would violate Sections 3 and 5 of the MTP Act. The question was raised as to whether the heart of the fetus could be stopped for termination of such a pregnancy. The bench expressed aversion against passing such an order, holding that it may amount to foeticide. It was held that the Indian law for abortion gives paramountcy to the woman’s life, the mother was in no “immediate threat” from the pregnancy, and the fetus was not suffering from any abnormalities. The aforementioned factors happen to be the only two exceptions to the termination of a pregnancy beyond the gestational limit of 24 weeks, as per the MTP Act. AIIMS medical board after examining the mother’s mental, emotional, and physical condition reported that the petitioner was suffering from post-partum depression but the medications for the same did not affect the fetus adversely. It directed the state to bear all costs of the pregnancy and adoption, in case the petitioner decides to give the child up for adoption.

An important exegesis of Section 5 of the MTP Act was given by CJI Chandrachud, upon being invoked by the petitioner’s counsel. CJI Chandrachud elucidated that life under the meaning of Section 5 of the MTP Act cannot be interpreted as life meaning under Article 21 of the Indian Constitution. If it were so, the purpose of Section 3 (MTP Act) would stand entirely defeated. An overriding power to terminate the pregnancy cannot be given.

An intervention application was filed by Jindal Global Law School, represented by Advocate Colin Gonsalves. The counsel argued that the international law and norms on abortion rights explicitly encapsulate the absolute rights of women to terminate pregnancies at any given point in time because international laws do not recognize the rights of an unborn child. Citing Nikhil Datar v. Union of India, it was also contended that essentially all abortions lead to stopping a fetus’s heart, and stopping a fetal heart is not a “new” or a “shocking” phenomenon.

The CJI responded to the submission by stating that the case is not challenging the validity of the act and therefore the court will peruse accordingly. The Indian law will take precedence over here. As far as balancing the rights of an unborn child against the rights of a woman to abort, is concerned, it was carried out by the Parliament back in 2021 by amending the MTP Act. It was argued that the court cannot deny the legislature the power to decide on such matters, thereby reaffirming the principle of “separation of powers” in spirit.

The Indian laws do pass the balancing tests when deciding the scope of abortion rights, after due consideration to the merits of the case. The courts from time to time are faced with such predicaments where opposing interests are weighed against each other and the decision is based on the basis of the side that is more compelling in the given circumstances. The court was faced with a similar quandary when an unmarried woman sought to terminate pregnancy at 24 weeks. The court gave the order in her favor for the reason that the MTP Rules created an artificial distinction between married and unmarried women by only permitting a married woman to abort. Such discriminatory rules are not sustained constitutionally, thereby the court expanded the scope of the right to abortion beyond 24 weeks, for unmarried women as well. This indicates the Indian judiciary’s proactive role in securing the right to safe abortion for women, in a substantive manner.

The court in its order against terminating a 26-week pregnancy attempts to find a balance between pro-choice and right to life for an unborn child. The balance is attained after due consideration of all the factors involved and coming to a conclusion favoring the rights of an unborn child. The case opens the window for challenging the MTP Act with respect to the international laws and standards which give an absolute primacy to the rights of women in deciding to abort. A thought-provoking debate for refining ethical considerations of abortion again awaits the Indian courts in the coming times.

The author is a student at Symbiosis Law School, Pune. Views are personal.