OPINION: Late abortion denials ‘cruel, inhumane, and degrading’

The high court also based its decision on previous judgements of the apex court.

High court’s decisions

Despite the permission granted by the high court, AIIMS did not perform the MTP and requested the woman to seek clarification from the Delhi High Court over the status of the foetus if it were alive after the MTP. AIIMS sent a letter to the woman’s counsel and also to the high court to this effect. The woman was subjected to repeated “counselling” because there was a reasonable risk of physical and mental handicap to the newborn.

In a new twist to the plot, on 15 January, the Union government filed an application requesting recall by the Delhi High Court of its earlier judgement, invoking a Supreme Court judgement from the previous year wherein the apex court did not permit an MTP beyond 24 weeks because there were no substantial foetal anomalies as diagnosed by the medical board.

AIIMS, in an application filed on the same day, similarly argued that pregnancy terminations beyond 24 weeks are to be done only for foetuses having significant abnormalities. In the present case, the foetus was “grossly normal”, it said, and added that “foeticide, in this case, is neither justified nor ethical”.

By the time the final decision was announced, the pregnancy had advanced to 33 weeks gestation. Thus, the recently-widowed woman suffering from trauma and depression was forced by the Indian state, health system, and the judiciary to continue with an unwanted pregnancy.

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AIIMS’ request surprising

The request by AIIMS for clarifications from the court on the status of the foetus if it were alive after the MTP is surprising.

It does not seem possible that a premier institution is unaware of the guidelines issued by the Ministry of Health and Family Welfare. In 2018, the ministry issued guidelines to Medical Boards for third-trimester pregnancy terminations. Section VC of the guidelines is about stopping the foetal heartbeat before its expulsion, using potassium chloride injection in the foetal heart before termination.

This procedure is also recommended by the Royal College of Obstetricians and Gynaecologists and adopted by clinicians for performing third-trimester abortions in the US. Skilled professionals can safely and effectively perform third-trimester abortions.

The court has also narrowly interpreted the MTP Act to permit abortion beyond 24 weeks gestation only in the case of gross foetal anomalies. There are several past instances where the courts have chosen a liberal and broad interpretation to protect the interests and rights of the pregnant person.

For example, in XYZ v. Union of India (supra), the court held that “the principle of narrow or literal construction cannot be adopted when it comes to the interpretation of Section 3(2) and Section 5 of the Act. Instead, the principle of liberal or purposive interpretation is to be adopted.”

There are several instances where the Supreme Court and other courts have permitted medical termination of pregnancies which had exceeded the ceiling of 20 weeks where continuance of pregnancy involved grave injury to the mental health of the pregnant woman.

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Women’s well-being to be at the centre

It is essential to mention here that the recent safe abortion guideline of the World Health Organisation, after careful consideration of scientific evidence, recommends against laws and other regulations that prohibit abortion based on gestational age limits. In other words, there is no reason to be splitting hairs about the number of weeks till when abortions may be performed. It is women’s health and well-being that needs to be at the centre of all discussions.

The viability of the foetus as grounds for denying a woman the abortion and references to “foeticide” as not justified and unethical is highly problematic. This is the second time over the last few months — the earlier instance was in October 2023 — that AIIMS and the Union government have challenged the termination of a third-trimester pregnancy when there were no foetal anomalies. In the earlier instance, the Supreme Court had mentioned the “importance of balancing the rights of a woman to autonomy and choice with the rights of an unborn child”.

These are dangerous developments that need to be challenged here and now. It is a matter of concern when the apex court ignores that the text and interpretation of the Universal Declaration of Human Rights explicitly premises human rights on birth. Subsequent international human rights treaties, as drafted and interpreted, have consistently rejected claims that human rights should attach from any time before birth.

Notably, a 2016 judgement by the Bombay High Court observed that “according to international human rights law, a person is vested with human rights only at birth; an unborn foetus is not an entity with human rights.”

Involuntary motherhood denies women any semblance of control over one’s destiny as a human being. It imposes upon women an extreme form of gender discrimination where their lives and well-being are subordinated to that of a yet-to-be-born entity. The recent denials of permission for third-trimester abortion to most vulnerable women and girls sets a dangerous precedent that needs to be challenged urgently by all citizens concerned with protecting and upholding human rights.

(The author is currently a senior editor of the international journal Sexual and Reproductive Health Matters. Views are personal.)