What is ‘foetal viability’ in abortion, and do the rights of an unborn child matter?

First of all though, what is this case about?

A 27-year-old married woman, who already has two sons, has pleaded that the current pregnancy was unplanned. She has said that her family income is insufficient to support another child, and that she is herself not in the right mental frame, having been under medication for post partum depression after the birth of her second child.

On October 9, a two-judge Bench of Justices Hima Kohli and B V Nagarathna, after interacting with the petitioner through video conferencing, 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 for which termination is allowed up to 24 weeks.

However, on October 10, a doctor from AIIMS, Delhi, the hospital where the woman was to go for the procedure, emailed the counsel for the Centre saying that a directive would be needed from the SC on whether a foeticide (stopping the foetal heart) can be done before the termination of the pregnancy, since the foetus is “currently viable” and presents a “strong possibility of survival”.

On October 11, after the AIIMS report, the same SC Bench was split on allowing the abortion. Justice Nagarathna said the petitioner’s decision to abort must be respected, while Justice Kohli said her “judicial conscience” did not permit her to accept the request.

The case then went before a three-judge Bench headed by Chief Justice of India (CJI) D Y Chandrachud. On Friday (October 13), the Bench called for a fresh medical report to indicate the foetal health and medical condition of the woman. The case will come up again before the court on October 16.

What is India’s law on abortion?

The Medical Termination of Pregnancy Act (MTP Act) allows termination of pregnancy in three stages.

• Termination of pregnancy up to 20 weeks is allowed on the advice of one doctor.
• If a pregnancy is 20-24 weeks, the right to seek abortion is determined by two registered medical practitioners as an exception, but only under certain categories. Section 3B of the Rules under the MTP Act lists seven 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.
• After 24 weeks, the MTP Act requires a medical board to be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality.

Has the court allowed termination beyond 26 weeks?

Yes, in several cases. On August 21, a Bench headed by Justice Nagarathna held a special sitting on a Saturday (when the court is shut) to allow termination of pregnancy of a rape survivor whose pregnancy was at 27 weeks and three days.

However, the difference in the current case seems to be the marital status of the woman, which indicates that the conception is consensual and not a “forced” pregnancy in the way it is usually understood.

In September 2022, a Bench led by Justice Chandrachud (he was not CJI at the time) allowed abortion for an unmarried woman who was 24 weeks pregnant, and was in a consensual relationship. The Bench cited “transformative constitutionalism” that promotes and engenders societal change, and said that “the law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures”.

There are also instances in which a court has overruled the decision of the medical board to allow termination. In ‘Bhatou Boro v. State of Assam’ (2017), Gauhati High Court overruled the medical board’s refusal to give an opinion for termination of pregnancy of over 26 weeks of a minor rape survivor.

So where do the ideas of the rights of an unborn child, and foetal viability come in?

The observations by the CJI-led Bench on October 13 oscillated between the rights of a woman “must trump” when it comes to abortion, and the need to “balance out the rights of the unborn child”.

“There is no doubt that our law is far ahead of other countries. We will not have a ‘Roe versus Wade’ situation here. Our law is liberal and pro-choice,” the CJI observed.

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

Foetal viability in 1973 was pegged at 28 weeks (7 months), which is now with scientific advancement lower at 23-24 weeks (6 months). It has been argued, therefore, that foetal viability is an arbitrary standard.

The criticism of India’s law is that the decision to terminate after 20 weeks is shifted to doctors and not the woman. While this aspect is not challenged in court, frequent cases of women approaching the court at the eleventh hour point to a legislative gap.

The Indian legal framework on reproductive rights tilts to the side of the woman’s autonomy to decide and choose more than towards the rights of the unborn child.

In 2005, Rajasthan High Court in ‘Nand Kishore Sharma versus Union of India’ rejected a challenge to the constitutional validity of the MTP Act on the grounds that it violates the fundamental right to life of an unborn child.

The right of an unborn child has, however, formed the basis of legislation that deal with succession or the law banning sex-determination of foetus. Section 416 of the Code of Criminal Procedure also provides for postponement of the death sentence awarded to a pregnant woman.