Foetal Viability

In recent news, the Supreme Court of India made a significant decision regarding foetal viability, highlighting complex issues surrounding the rights of the unborn child.

Contents

News: Supreme Court Decision

The Supreme Court recently refused a woman’s plea to terminate her 26-week pregnancy, based on the AIIMS medical board’s report that stated there was no immediate danger to the woman’s health, and the foetus was healthy. The government committed to covering the delivery expenses and facilitating adoption if desired by the parents. The woman, a 27-year-old married mother of two sons, was facing an unplanned pregnancy, insufficient family income, and mental instability requiring post-partum depression medication.

Court’s Proceedings

On October 9, a two-judge Bench consisting of Justices Hima Kohli and B V Nagarathna allowed termination due to contraceptive failure, which resulted in a forced pregnancy. Termination was allowed up to 24 weeks of pregnancy.
On October 10, an AIIMS doctor’s email raised the need for a Supreme Court directive for foeticide, stating that the foetus was currently viable and had a strong survival possibility.
On October 11, the Bench split on the decision. Justice Nagarathna supported respecting the petitioner’s choice, while Justice Kohli denied termination due to her “judicial conscience.”
The case was subsequently placed under a three-judge Bench led by Chief Justice of India D Y Chandrachud, which called for a fresh medical report assessing both the foetal health and the woman’s medical condition.

Key Discussion Topics

Foetal Viability

Foetal viability refers to the ability of a foetus to survive outside the uterus.

Rights of the Unborn Child

Significance

The case marks a new benchmark in India’s interpretation of the Medical Termination of Pregnancy Act (MTP Act) by introducing “foetal viability” as a criterion for abortion decisions.

Concerns

The viability standard has evolved over time. In 1973, it was 28 weeks (7 months), while currently, it stands at 23-24 weeks (6 months), leading to concerns about its arbitrariness.

General Understanding

In medical terms, viability typically falls between 23-24 weeks of gestational age.

Facts

Historical Judgments

In 1973, the US Supreme Court’s ‘Roe v Wade’ decision allowed abortion until foetal viability.

Medical Termination of Pregnancy Act (MTP Act)

The MTP Act regulates abortion in India:
- Up to 20 weeks: Requires one doctor’s advice.
- 20-24 weeks: Requires the approval of two registered medical practitioners, with exceptions under specific categories.
- After 24 weeks: Decisions are made by a medical board in approved facilities, based on foetal abnormality.

Criticisms

Critics argue that shifting the decision-making authority after 20 weeks to doctors removes it from the woman’s hands, potentially limiting her autonomy.
A legislative gap is evident in India’s legal framework, which favors a woman’s autonomy over the rights of the unborn child.

Related Legislation and Judgments

The Rajasthan High Court’s 2005 judgment in ‘Nand Kishore Sharma vs. Union of India’ rejected a challenge to the MTP Act, asserting that it does not violate the unborn child’s right to life. The basis of this legislation includes succession laws, laws banning sex determination, and Section 416 of the Code of Criminal Procedure, which postpones the death sentence for pregnant women.