Questions of foetal viability and rights of unborn child

  • October 14, 2023
  • Posted by: OptimizeIAS Team
  • Category: DPN Topics
No Comments

 

 

Questions of foetal viability and rights of unborn child

Subject: IR

Section: International conventions

Context: Legal dispute spanned two Supreme Court benches, raising abortion autonomy and legislative concerns.

What is the case about;

  • A 27-year-old woman, with two children, seeks an abortion due to unplanned pregnancy and financial constraints.
  • A two-judge bench approved the termination, citing contraceptive failure.
  • However, AIIMS raised concerns about foeticide, prompting a three-judge bench, led by the Chief Justice of India, to request a new medical report regarding the woman’s health and foetal condition.

What are the abortion law in India:

  • Abortion was initially illegal in India, resulting in imprisonment or fines under Section 312 of the Indian Penal Code.
  • To address this, the Shantilal Shah Committee was formed in 1964. to assess the necessity of abortion regulations.
  • This led to the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971, legalizing and regulating abortions.
  • Now abortions in India are regulated by the Medical Termination of Pregnancy (MTP) Act, 1971.
  • Under the law section 3 of the MTP Act 1971, the doctor can perform an abortion in the following conditions:
    • If the pregnancy would be harmful to the life of the patient or affects her physical or mental health. The doctor will need to consider the circumstances of the patient to figure out if the pregnancy will harm her mental health, on a case to case basis.
    • If there is a good chance that the child would suffer from physical or mental abnormalities which would leave him or her seriously handicapped.
    • If pregnancy occurred as a result of a failure of contraception only applicable to married women.
    • If pregnancy is a result of sexual assault or rape.

Condition for termination of pregnancy:

  • If the pregnancy has not exceeded 12 weeks, only one doctor is needed to sign-off.
  • If the pregnancy has exceeded 12 weeks and is below 24 weeks, two doctors are needed.
  • The gestation period does not matter if a doctor feels that an immediate abortion must be conducted to save the life of the patient.
  • The doctor who determines if it is necessary to perform an abortion and performs it needs to be a ‘registered medical practitioner’ under the law.
  • In January 2020, the Union Cabinet approved amendments to the MTP Act, allowing women to seek abortions as part of reproductive rights and gender justice.
  • The amendment raised the upper limit of MTP from 20 weeks to 24 weeks for women including rape survivors, victims of incest, differently-abled women and minors

Has the court allowed termination beyond 26 weeks:

  • Yes, in several cases. For example, the SC on August 21 allowed termination of pregnancy of a rape survivor whose pregnancy was at 27 weeks and three days.
  • However, the difference in this case seems to be the marital status of the woman, which indicates that the conception is consensual and not a forced pregnancy in that sense.
  • In September 2022, the SC 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.
  • There are also instances in which courts have overruled the decision of the medical board to allow termination.

What About the Rights of an Unborn Child:

  • The Chief Justice of India (CJI) led Bench debated the balance between a woman’s abortion rights and the rights of the unborn child.
  • The CJI acknowledged India’s liberal and pro-choice abortion laws, distinguishing them from the US’s Roe v. Wade case.
  • In India, the concept of “foetal viability” is a new benchmark for abortion decisions, a departure from the US model where it’s linked to a foetus’s ability to survive outside the womb.
  • Critics argue that Indian law shifts the decision to terminate after 20 weeks to doctors, not the woman, highlighting a legislative gap.
  • India’s legal framework favors a woman’s autonomy in reproductive rights over the rights of the unborn child.
  • Past legal cases have challenged the MTP Act’s constitutional validity regarding the rights of the unborn child.
  • However, the right of an unborn child has been the basis of legislation dealing with succession or the law prohibiting sex-determination of foetuses.
  • Section 416 of CrPC also provides for postponement of the death sentence awarded to a pregnant woman.
IR Questions of foetal viability and rights of unborn child