Why medical expert nod is key to courts deciding pleas seeking late-term abortions

It was indeed this question posed by doctors at AIIMS that caused the Delhi High Court Tuesday to recall its January 4 order allowing abortion of a widow who is currently 32 weeks pregnant.

On October 10 last year, a doctor from AIIMS wrote to the Supreme Court in the case of a 27-year-old married woman seeking to end her 26-week pregnancy, seeking a directive on whether foeticide must be performed to give effect to the judicial order allowing termination. After receiving the AIIMS report, the same two-judge SC bench was split on allowing the abortion. One of the two judges, Justice Hima Kohli, had asked which court will say “stop the foetal heartbeat”. When the same case went before a larger three-judge bench headed by CJI DY Chandrachud, it had also said “we cannot kill a child”.

The opinion of doctors is crucial since the Medical Termination of Pregnancy (MTP) Act allows the termination of pregnancy only on advice of doctors. Legal experts argued that despite India’s liberal stance on abortion, the MTP Act doesn’t place a woman’s reproductive right at the centre but only draws red lines for doctors to follow.

The Indian Penal Code under Section 312 makes abortion (induced miscarriage) a criminal offence. The MTP Act is an exception to this provision, ensuring only abortions allowed by doctors are not criminal acts.

While the MTP Act regulates pregnancies at different stages, foetal viability is not a standard that it explicitly adopts. In contrast, several state legislations in the US peg foetal liability, that is, the time after which a foetus can survive outside the womb, as a standard to allow abortion. The Act also deals with termination of pregnancies up to 24 weeks. After this, the Act requires a medical board to be set up in “approved facilities”, which may “allow or deny termination of pregnancy “only if there is a substantial foetal abnormality. The process to set up such a board is often cumbersome, which leads to women moving court.