Foetus’s right vs woman’s autonomy: Why a 26-week pregnancy case is a national concern

For a 27-year-old woman, it came as a shock that she had an on-going pregnancy of 25 weeks soon after giving birth to her second child.

BySumit Jha

Published Oct 14, 2023 | 12:00 PMUpdatedOct 14, 2023 | 12:00 PM

Foetus’s right vs woman’s autonomy: Why a 26-week pregnancy case is a national concern

… the judicial conscience of one of us (Hima Kohli, J) does not permit the petitioner to terminate the pregnancy. However, my Sister Judge (B.V. Nagarathna, J) holds a different opinion, which she has expressed separately.

So said Justice Hima Kohli in the Supreme Court on 11 October on a woman’s petition to terminate a 26-week-old pregnancy.

As of 13 October, the top court in India has not issued a judgement on the termination, citing potential violations of the Medical Termination of Pregnancy Act and Articles 21 and 15(3) of the Constitution, which recognise the rights to life and liberty, particularly for women.

The Supreme Court requested a new report from the All-India Institute of Medical Sciences (AIIMS) to determine if the foetus has any significant abnormalities.

This order came after the Union government could not dissuade the married woman to withdraw her petition. The woman urgently sought the termination of her pregnancy.

So, why is this becoming a national issue and what is this case about? Let’s jump into it.

The case of 26-week pregnancy

A 27-year-old woman from Delhi moved the Supreme Court on 4 October, seeking permission to terminate her pregnancy. She was 24 weeks pregnant by then. Her grounds were that she already has two children and also suffers from depression.

She and her husband were happy with their two children, and the latest pregnancy shocked them, she told the court.

She did not realise she was pregnant because she had adopted LAM (Lactational Amenorrhea Method), a natural family planning method.

It is a birth control alternative to the pill and other contraceptives. It relies on hormones the mother’s body makes while breastfeeding. If she follows the guidelines, this method can be near-totally effective in preventing pregnancy within the first six months of giving birth.

The WHO accepts LAM as an effective birth control method.

It is quite a simple process. When the baby suckles the breast, the ovaries get signals to stop making eggs. Without eggs being released, there cannot be a pregnancy. A hormone called Prolactin, which makes the mother’s body produce milk, gets involved in the process, and the woman stops having periods. This is lactational amenorrhea.

The temporary postnatal infertility ends, and the fertility cycle begins the moment the mother stops breastfeeding.

Also read: Daily-use plastics may impact pregnancy, reproductive function

But why doesn’t LAM work physiologically in all women?

The physiological reason why LAM doesn’t work in all women is primarily related to the hormonal mechanisms involved in breastfeeding and its impact on the reproductive system. LAM relies on the suppression of ovulation (release of eggs from the ovaries) due to breastfeeding-induced hormonal changes.

Prolactin, released during breastfeeding, can suppress ovulation, making it less likely for a woman to release eggs and resume her menstrual cycle. However, the extent to which prolactin effectively suppresses ovulation varies with people. Some women may experience a more pronounced suppression of ovulation, while others may not.

Also, women’s hormonal responses to breastfeeding vary, impacting the period of amenorrhea.

The frequency and intensity of breastfeeding play a crucial role in LAM’s effectiveness. If a woman does not breastfeed exclusively or decreases the frequency of breastfeeding sessions, the hormonal suppression of ovulation may be less effective.

Additionally, the introduction of supplementary feeding, pacifiers, or solid foods can also reduce the effectiveness of LAM.

After a few months, uterine involution, where the pregnant uterus returns to its pre-pregnancy state, starts due to these hormonal mechanisms.

“In most cases, when there are no thyroid abnormalities, or when she experiences regular menstrual cycles from the beginning of her menarche, uterine involution proceeds as expected,” Gynaecologist Dr Kavya Chinta told South First.

However, there are instances where uterine involution doesn’t progress as smoothly, and the uterus takes longer to return to its non-pregnant state, resuming normal function. Certain uteruses become significantly distended during pregnancy, and returning to a non-pregnant state takes time.

However, in the case of the Delhi-based petitioner, she did not realise that LAM was not working. She had no pregnancy symptoms and came to know of it when the doctor informed her.

She claimed that her husband is the bread-earner with the additional responsibility of caring for his parents and a sister with his meagre earnings. An additional mouth to feed was, therefore, unviable for them.

The couple approached several hospitals and doctors to abort the foetus. However, they were turned away because she was already over 20 weeks pregnant.

The MTP Act permits medical termination of pregnancy through a RMP up to 20 weeks, and only in the case of a forced pregnancy — when caused by rape, for instance — termination is permitted up to 24 weeks.

Also read: Court allows 15-year-old rape survivor to terminate pregnancy

First AIIMS opinion, the first judgement

The court sought the opinion of a medical board of AIIMS. On 6 October, the board attested to the presence of a foetus of 25 weeks five days with an estimated weight of 886 gm.

“As per the current status, the baby is viable and has a reasonable chance of survival. However, the chances of post-partum psychosis, which the couple is worried about, are present even at this gestation following delivery,” the board said.

In its first judgement on 9 October, the Supreme Court bench of Justices Kohli and Nagarathna said that the woman had delivered both her children by C-Section and is stated to be undergoing psychiatric treatment and continuous medication on account of depression for the past one year.

The court also recognised that one of the grounds on which a pregnancy may be permitted to be terminated was when continuing with the pregnancy could seriously imperil the mental health of the woman.

The twist

However, the case witnessed a twist when a medical board member — a professor in the Department of Obstetrics and Gynaecology at AIIMS — approached the court through Additional Solicitor General (ASG) Aishwarya Bhatti, seeking a critical clarification.

In an email written to the ASG, the professor said that as the baby was currently viable (will show signs of life and have a strong possibility of survival), “we will need a directive from the Supreme Court on whether foeticide (stopping the foetal heart) can be done before termination. We perform this procedure for a foetus with abnormal development, but generally not in a normal foetus.”

The professor also mentioned that if feticide were not performed, it would not be a termination but a preterm delivery where the baby would have to be provided treatment and care.

“A baby who is born preterm and also of such low birth weight will have a long stay in the intensive care unit, with a high possibility of immediate and long-term physical and mental disability which will seriously jeopardise the child’s quality of life. In such a scenario, a directive must be given as to what should be done with the baby. If the parents agree to keep the child, this will take a major physical, mental, emotional and financial toll on the couple,” said the professor.

The professor also said that should the newborn go for adoption, it is best that the child comes into the world after at least another eight weeks, when it will have a better chance at life.

The professor also mentioned the experience of the petitioner’s previous deliveries, where she had to deliver two kids abnormally through C-section surgery.

The professor said there would even be a risk of a C-section during the termination of pregnancy. “It is also to be kept in mind that the consequences of delivery which have happened in the previous two babies (of the 27-year-old woman) can happen at this time also, with a delivery now at this time,” said the professor.

After this, the court again sat on 11 October, and this time, the judges differed.

Also read:  Kerala HC triggers debate on the right age to conceive using ART

First, a medical dilemma

The termination of a pregnancy at 26 weeks poses complex clinical and ethical considerations.

“At this gestational stage, the foetus is often considered viable, with a significant potential for survival outside the womb, albeit with intensive neonatal care. We strive to provide the highest level of care to infants born prematurely, even at 26 weeks. The decision to terminate a pregnancy at this stage warrants careful consideration of the medical, legal, and ethical dimensions,” Hyderabad-based Neonatologist Dr Janaradhan Reddy told South First.

The gynaecologist mentioned that termination of pregnancy at 26 weeks was risky for the mother because it would not be a normal termination. The process has to be as meticulous as a delivery. Even if the procedure is followed perfectly, there is always the risk of unsuccessful termination.

That would require additional procedures or follow-up care.

The disagreement in judgement

Justice Kohli, referring to the AIIMS professor’s email of 10 October, stated, “The judicial conscience of one of us (Hima Kohli, J) does not permit the petitioner to terminate the pregnancy.”

Justice Nagarathna said that it may not be out of place to note that a foetus is dependent on the mother and cannot be recognised as an individual personality from that of the mother as its very existence is owed to the mother.

“It would be incongruous to conclude that the foetus has a separate identity from the mother, and in spite of the physical or mental health of a mother being under threat, she will have to continue her pregnancy until the foetus is born, which would endanger her delicate health. Such a position is contrary to Articles 21 and 15(3) of the Constitution of India, which recognise the right to life and liberty, particularly those of a woman.

“Having regard to the concrete determination made by the petitioner, I find that her decision must be respected. This is not a case where the question of a viable baby being born or unborn is to be considered when the interest of the petitioner mother of two children and expecting the third in a year from giving birth to the second child has to be given preference,” said Justice Nagarathna.

Also read: How gender equality drive in Kerala schools has been derailed

Still, the decision awaited in the 27th week

After the split verdict on the two judges’ bench, a new Bench, led by Chief Justice of India DY Chandrachud, took up the matter and called for a fresh report on the health conditions of the woman in view of the drugs she had been taking for her postpartum depression.

The Bench also comprises Justices JB Pardiwala and Manoj Misra. The next hearing of the case has been scheduled for Monday, 16 October.

“Upon doing so, we request the doctors to apprise this court if the petitioner is found to be suffering from postpartum psychosis and whether any alternate administration of medication consistent with the pregnancy would be available so as to neither jeopardise the well-being of the petitioner or the foetus in that regard,” the Bench said.

A three-judge Bench emphasised that “the highest court of the land cannot overlook the rights of an unborn child when it has to deal with cases of abortion”.

“Cognisant as we are of a woman’s autonomy in these cases, we cannot be oblivious to the rights of an unborn child… We cannot kill the child,” said the Bench.

The Bench observed that during the hearing, the petitioner’s counsel submitted a bunch of prescriptions in support of his submission that she has been undergoing treatment for postpartum psychosis at a clinic since 10 October, 2022, after delivering a child in September that year.

ASG Bhatti argued that the right to decisional autonomy and reproductive rights are not “absolute” like any other.

“They are subject to a legal regime (MTP Act), which has withstood the scrutiny of the court. To go against the law and medical opinion will be difficult and chaotic for the country,” said the ASG, adding that it could be difficult for the court to go only by the choice of a woman, who, in the doctor’s opinion, was vacillating in her response.

She said the MTP Act, as amended, is a “pro-choice legislation” but “pro-choice can’t be read to mean extinguish life”.

“We are a pro-choice country. We will proceed on that basis,” the Bench said, adding that the life of the woman is given paramount importance under the law.

While hearing the matter on Thursday, the Bench observed, “we cannot kill the child”, and stressed the need to balance the rights of the unborn child with the right to autonomy of the mother who has sought to abort the healthy foetus because of her bad health.

Also read: Postpartum depression — ‘baby blues’ — can impact fathers too

The precedent?

The responsibility of determining the outcome of the pregnancy termination now rests with the Supreme Court of India.

The issue is about the sanctity of the 24-week deadline. There have been instances where the courts have allowed termination of pregnancy beyond 24 weeks in the case of minor rape victims.

As recently as in May this year, the Kerala High Court had allowed a 32-week-old pregnant 15-year-old teen to go for an abortion. Even in 2017, the Supreme Court had allowed for termination of a 32-week pregnancy of a rape survivor.

Irrespective of the reason for the pregnancy, the fact remains that after the 24th week, the question of the foetus’s right to life comes up for consideration. The courts need to dwell on whether there are different standards for different situations causing the pregnancy.

The other issue the judiciary must resolve is about the women’s autonomy.

In July 2022, the Supreme Court held that a woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution. But the order flies in the face of the matter of the foetus’s right to life once the 24-week barrier is crossed.