The Delhi High Court’s u-turn on an order permitting a woman abortion after All India Institute of Medical Science (AIIMS) said foeticide was unethical in late-stage pregnancy has raised concerns.
The high court on January 23 recalled its January 4 order after AIIMS expressed ethical concerns over aborting a foetus that is “grossly normal”. The Centre, too, had appealed for a recall seeking protection for the “unborn child”.
In India, the Medical Termination of Pregnancy (MTP) Act allows for all women to opt for abortion up to 24 weeks. Beyond that, they must move court for permission. Even then, there are no term limits if the pregnancy is dangerous for the woman – either physically or mentally.
However, the high court’s reversal of its order has reignited the pro-life versus pro-choice debate.
This is not the first time a court reversed its order permitting abortion. In the last few months, there have been at least four court orders where abortions have been refused because of the ‘viability of a foetus’. In Delhi, this is at least the second case in less than four months where the Centre and AIIMS have expressed reservations against the termination of pregnancy beyond 24 weeks where the foetus is not suffering any abnormalities.
In Kerala, the high court on two separate occasions denied abortion requests in late-stage pregnancies.
In all four cases, the rights of a foetus have been given primacy over women’s rights. This, experts believe is the start of a worrying trend with the potential to have devastating consequences on women’s agency and their rights.
“Using ‘viability of a foetus’ based arguments in abortion pleas either by medical boards or the judiciary is a slippery slope,” Sunita Bandewar, Secretary General of the Forum for Medical Ethics Society (FMES) said. “The reason being, as tech advances, the gestation length at which a foetus could be viable decreases,” she added.
“This hypothetically implies, there will be times that fetus is viable early on obstructing access to abortion,” Bandewar told BOOM.
However, Dr Suchitra Dalvie, Co-Founder – Asia Safe Abortion Partnership (ASAP), feels the problem is more deep-rooted. “Medicine is not taught with respect to gender sensitivity. When I was in med school, terminology like ‘sexism’, ‘misogyny’, and ‘patriarchy’ was not talked about. Medicine was taught clinically,” Dalvie said. At the time, I wondered about this, but I was young and thought aisa hi hota hoga (it must be like this only),” she added.
“It is when you come out in the real world that one understands there is more to medicine than just diagnosis and prescription,” Dalvie said.
Foetus is not a person, personhood starts at birth
Almost all experts are of the unanimous opinion that Indian laws as of today do not speak of foetal rights. “They are bringing in foetal rights which is not in the Act. This needs to be addressed,” Ahmedabad-based paediatrician Dr Alka Barua said.
“The act allows for termination of pregnancy in several instances including if the foetus has a severe handicap, or if continuation of a pregnancy is dangerous to the woman. However, none of these conditions are incumbent on the viability of the foetus,” advocate Sneha Mukherjee said.
Sunita Bandewar, who is also the working editor of the India Journal of Medical Ethics (IJME), pointed out that the ‘viability of a foetus’ cannot be grounds for denying abortion. “It is encroaching on women’s rights by giving precedence to so-called ‘fetal rights’”, she added.
“A foetus is in a woman's body, it is a part of a woman’s body and has no existence of its own and has no personhood to claim rights. So, the judiciary using such arguments in its judgements on abortion pleas is inherently constrained and overstepping women's right to a decision regarding abortion,” Bandewar told BOOM.
“Foetus has no identity of its own, it is as simple as that,” she said.
“There are long-term consequences if this is the way courts and doctors keep talking,” ethics professor Amar Jesani said. “Doing abortion is feticide. But here, you are equating a foetus with a living person. Right now, concerns are arising at 24 weeks. But it is very easy to slip down to 20 weeks, 18 weeks. At some point, will we go the Texas Heartbeat Bill way and reach six weeks?” Jesani said referring to the United States bill that outlawed abortion after six weeks.
Women’s rights > foetus rights
Dr Alka Barua said one must not lose sight of the main purpose of the Medical Termination of Pregnancy (MTP) Act – enabling women to access safe abortion. “In all of this, a whole point is missed and there is no discussion or debate on what is good for the pregnant woman,” Baruah said.
“I don’t understand this case,” Barua, who leads the abortion team at CommonHealth India – a multi-coalition group that advocates access to safe abortions, said referring to the Kerala High Court’s December 2023 order where a 12-year-old sexual assault survivor was denied permission to terminate her pregnancy. “Why is forcing her to continue with the pregnancy for the full term not considered traumatic?” Barua asked.
Barua was referring to the Kerala High Court order denying the 12-year-old sexual assault survivor permission to terminate her pregnancy because the foetus was fully developed.
“There is too much red tape in healthcare when it comes to decision-making. I believe a decision should finally be with the woman. But today, it has become politicised and has taken religious connotations,” Sunita Bandewar said.
Ethics professor Amar Jesani points out that there are a couple of fundamental rights-related issues at play here. “The courts are unable to decide if a woman has a fundamental right to abortion at any time during her pregnancy,” Jesani told BOOM.
“Viability of a foetus has not been defined. What is the viability of the foetus? At what point does a foetus become a person? Jesani asked. “So whose life are you going to give more importance? The woman – who is a living breathing person with rights, or a foetus?” he questioned.
Personal bias colouring professional opinion
It appears that personal biases are colouring professional medical opinions, experts said.
“Doctors, at least some of them, are allowing their faith and their views shaped by their socio-cultural perspectives on matters such as abortion to colour their professional opinion which should be informed by medical science. And judiciary in these cases rely on these medical opinions before they take their decision in abortion pleas,” Sunita Bandewar said.
“The way medical boards are delivering on their obligations relating to providing medical opinions on abortion care requests in recent times, it appears that their decisions are influenced by their own views regarding induced abortions rather than sound medical science and legal frameworks in their spirit going beyond letters of the law,” she added.
All religions oppose abortions, Jesani said adding, now religion is in the air and doctors live in this society. “From my broad observations, I feel that their [doctors] religious beliefs are influencing their professional beliefs. And these opinions, in turn, influence judges. So, you are giving primacy to religious ethics over medical ethics,” he said.
“Doctors' business is to give the care a woman comes for, not to give them their opinions,” Jesani said while Bandewar observed that the issue has “become politicised and has taken religious connotations.”
“Some of the reversals of decisions of medical boards give us enough space to suspect the likelihood of interference by forces external to medical boards,” she said. “One suspects a likelihood of a kind of co-opting of these important state instruments and medical community by political dispensations directly or indirectly,” Bandewar told BOOM.
Former Delhi High Court judge Mukta Gupta partly agreed and disagreed with these observations. “Personal faith and bias should never come in the way of judicial decisions. It is not one of the parameters at the time of decision-making,” Justice Gupta said.
However, the ex-judge agreed that at the end of the day, judges are also human beings after all. “There have been many times where I have decided cases that challenged my personal faith and biases because the facts and law warranted it, the ex-judge said.
But Dr Sunita Tandulwadkar, the first woman president of The Federation of Obstetric and Gynecological Societies of India (FOGSI), shot down these concerns.
“I don’t accept it,” the obstetrician/gynaecologist said. “I don’t think personal biases come in their way of professional opinions,” she said.
Gap in the law and guidelines
Doctors and lawyers believe there is a gap between the law, the guidelines and, health care providers and what the courts are saying. “There is an urgent need for guidelines. There are international guidelines on termination of late-term pregnancies,” Dr Alka Barua said.
“When the US Supreme Court reversed Roe v Wade, our newspapers reported how our abortion laws are one of the most progressive. I agree that despite some shortcomings, our laws are definitely progressive. But if this doesn’t translate to beneficiaries then the law has no meaning,” Barua said.
Dr Tandulwadkar said FOGSI already has guidelines for safe abortion and MTP. The doctor further agreed on the delays that take place when women approach courts for abortions after 24 weeks.
“When R (petitioner before Delhi High Court) came to court (in December), the termination (of pregnancy) was doable. The courts and the hospital dragged the case for a month. This, I believe was a failure in part by the judiciary and partly by AIIMS,” advocate Sneha Mukherjee said.
“Time is of the essence. As FOGSI president-elect (2025), I want to sit with the government and create a state body – a medical board of sorts, that will consider abortion in cases where the pregnancy has crossed 24 weeks. This medical board – comprising doctors, lawyers and government officials – can look at cases and give their decision within 72 hours,” Tandulwadkar said.
Jesani said there is much concern about ‘foeticide’. But Indian laws have not defined it, he said.
“When the matter goes to court, one judge will say – ‘I cannot give an order to stop a heartbeat’. But the law already allows for termination of pregnancy before 24 weeks. By then the heart is already beating,” Jesani said. “So why are they scared? I am more confused by AIIMS who say if you want to stop the pregnancy, the heart must stop. Because when you terminate a pregnancy, you are stopping the heart in any case,” he added.
“So either the legislature or courts will have to decide on when a foetus is viable and define foeticide,” Jesani said. “Right now, each judge is deciding in his or her way,” he observed.
“Cases like these are indicators of the system’s failure while individual cases are markers,” Dr Suchitra Dalvie said.
Courts must step in, bring uniformity in guidelines
Experts believe that there must be uniformity in what is acceptable and what is not. Amar Jesani said it will become problematic if high courts and the Supreme Court start getting into this issue. “We have a population of more than 1.2 billion people. Are all cases going to come here? Are the courts equipped to handle so many cases?” he added.
In the recent past, judicial forums gave progressive judgments underscoring women’s rights. In October 2022, the Supreme Court asserted that women’s choice was paramount. “Her body, her choice,” SC had said at the time. A year later in October 2023, the Supreme Court allowed a woman with post-partum depression to terminate her pregnancy. "At the end of the day, this Court does recognise the decisional autonomy of the petitioner herein, the courts had observed.
While allowing permission to terminate a pregnancy, Delhi High Court judge Subramonium Prasad had observed that a woman’s right to reproductive choices included the right not to procreate.
However, these forward-thinking observations are absent in their reversal orders. Justice Prasad’s recall January 23 order makes no mention of the observations he made on January 4. Court records suggest that in two cases at least, attempts were undertaken to make the women reconsider their choice to terminate the pregnancy.
Dr Alka Barua said it is important to note one fundamental thing – language matters. “The language courts and AIIMS are using – words like ‘foeticide’, is likely to provoke ethical concerns. The use of such language is also likely to impact [healthcare] services,” Barua said.
Amar Jesani said the Supreme Court must take leadership on what rights women have. “We can’t have judges talking in different voices. Ultimately, the women will lose out,” he said.
“It’s a systemic problem,” Dr Suchitra Dalvie said. “The law has expanded itself, but guidelines have not caught up with it,” she added.