In SC, questions of foetal viability and rights of unborn child

Source: This post has been created based on the article “In SC, questions of foetal viability and rights of unborn child” published in The Indian Express on 14^th October 2023.

UPSC Syllabus Topic: GS Paper 2 Social Justice – Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

News: This article discusses India’s abortion laws and its criticisms. It highlights the recent Supreme Court case on abortion with reference to the foetus “viability test”.

The Supreme Court is hearing a married woman’s request to end her 26-week pregnancy. The case has travelled to two different Benches, raising crucial questions on the decisional autonomy of a woman to abort, and the legislative framework.

What is the case about?

A married woman, who already has two boys, argued that the pregnancy was unplanned. According to her, her family income is insufficient to support another child, and that she is under medication for post-partum depression.

Earlier, a 2-judge Bench allowed the termination of the pregnancy. The court reasoned that an unwanted pregnancy due to failure of contraceptive methods is the same as a forced pregnancy.

However, AIIMS, Delhi, wrote to the SC that it would need a directive on whether a foeticide can be done before termination since the foetus is “currently viable”.

Later, the case went before a 3-judge Bench headed by the Chief Justice of India (CJI).

What is the law on abortion?

The Medical Termination of Pregnancy Act (MTP Act) allows termination of pregnancy in 3 stages:

1) Termination of pregnancy up to 20 weeks is allowed on the advice of 1 doctor.

2) If a pregnancy is 20-24 weeks, the right to seek abortion is determined by 2 registered medical practitioners as an exception, but only under certain categories.
MTP Act lists 7 categories of forced pregnancies, including statutory rape in case of minors or sexual assault; women with disabilities; or when there is a change in marital status of women during pregnancy.

3) After 24 weeks, a medical board must be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality.

What are the complications in this case?

The contentious issue in this case was that it is a 26-weeks pregnancy, beyond the permissible gestational limit prescribed in the Medical Termination of Pregnancy (MTP) Act, 2021.  

The court has allowed termination beyond 26 weeks in several cases. However, the difference in this case seems to be the marital status of the woman, which indicates that the conception is consensual and not a forced pregnancy in that sense.

However, in the case of a consensual relationship too, the court has allowed termination in the past.
The court cited “transformative constitutionalism” that promotes and engenders societal change, and said that “the law must remain cognizant of significant changes in family structures”.

What is the foetus “viability test”?

The landmark 1973 US Supreme Court verdict in Roe v Wade that made abortion a constitutional right allowed abortion up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb.

Indian courts have read the MTP Act liberally, but the test of “foetal viability” as a benchmark to allow abortion is new in India.

What are the arguments in favour of allowing the abortion in this particular case? 

1) This request was a matter of right over individual bodily autonomy, to exercise a reproductive choice, and seeking support from the State for safe abortion services. These demands have been endorsed by India in the 1994 Cairo Declaration on Population and Development.  

2) CJI D Y Chandrachud’s observation in the 2022 Ms X case that “every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party”, underscoring reproductive autonomy.  

What is the criticism of India’s abortion laws?

1) The criticism of India’s law is that the decision to terminate after 20 weeks is shifted to doctors and not the woman.

2) There is also a need to balance between the “rights of a woman” when it comes to abortion, and the “rights of the unborn child”.
The Indian legal framework on reproductive rights tilts to the side of the woman’s autonomy more than towards the rights of the unborn child.