In Battle Of Rights, SC Pits Mother Against Unborn Child

The woman, a mother of two boys, was at her wits end. She had severe postpartum psychosis after her second child was born, and did not feel she could sustain another pregnancy.

“She told me that after delivering her second child, she had been nearly unconscious,” Mishra said. “She was under heavy medication for postpartum psychosis and had spent about two to three months sleeping. She told me she was not in her senses at the time.”

Since the clock was running out, Mishra moved the Supreme Court. On October 9, a two-judge bench granted her plea for abortion. A series of events and circumstances ended with the case being re-heard by a three-judge bench, which not only rejected her plea on October 16 but also told her to deliver the baby at the All India Institute of Medical Sciences, Delhi and give it for adoption if the couple wishes to do so.

“This decision of the Supreme Court is the most disastrous for abortion rights,” said senior advocate Colin Gonsalves from Human Rights Law Network, a collective of lawyers and social activists with its presence across Indian States that uses the legal system to strengthen human rights work in several states. HRLN, which has a reproductive rights initiative intervened in this petition.

“There are at least three judgments of the Supreme Court, and roughly 70 to 80 judgments of the high courts in the last 10 years allowing abortion right up to 30 weeks of pregnancy. With this one judgement, the Court has destroyed the magnificent edifice of abortion rights, which was the best in the world.”

As per the Medical Termination of Pregnancy Act, 2021, doctors in India are permitted to perform abortions up to 20 weeks and conditional abortion up to 24 weeks of pregnancy in cases of rape, incest, and change in relationship status, among a few others. In fact, just weeks before in August, the Supreme Court had allowed an abortion for a rape survivor from Gujarat whose pregnancy was nearly 28 weeks.

So how did this happen? IndiaSpend spoke to lawyers and activists to explain.

Women cannot get abortion on demand

In India, women cannot get an abortion on demand. In fact, Section 312 to Section 318 of the Indian Penal Code criminalises abortion (words used in the law is “causing miscarriage”) both for the person undergoing it and the person performing it. The Medical Termination of Pregnancy Act, 1971, is an exception to the penal law and protects doctors from criminal liability.

“The law is doctor-centric, which means a woman can get abortion service only at the discretion of the doctor,” said Dipika Jain, Director, Centre for Justice, Law and Society at the Jindal Global Law School in Sonepat, near Delhi. “It is not a rights-based legislation. And that's one of the concerns, and continues to be a concern for the last 50 odd years of this legislation.”

Abortion is available at district hospitals or medical colleges, and private healthcare centres. As per the latest National Family Health Survey 2019-20, 2.9% of pregnancies resulted in abortion. Among these, 67.5% of these are medical abortions, that is abortions done using pills.

As per a major Guttmacher study that was published in Lancet in 2018, abortions accounted for one-third of all pregnancies, and nearly half of the pregnancies were unintended. And 78% of abortions are done outside healthcare facilities, most of which were medical abortions using abortion pills.

Second trimester abortions--that is, after 12 weeks, when the sex of the foetus can be determined by an ultrasound examination--are harder to access as doctors worry about being booked under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, which prohibits sex determination. Therefore many women struggle to get abortion after 12 weeks of pregnancy despite it being legal, as doctors often refuse them.

In the case detailed above, too, it was the doctor who raised a flag that upended the entire process. On October 9, after the bench of Justices B.V. Nagarathna and Hima Kohli perused the medical report and passed an order granting abortion, the couple went to AIIMS for the abortion.

“The doctors there refused to conduct the procedure, saying that the word foeticide is not written,” said Mishra.

K. Aparna Sharma, professor at the Department of Obstetrics and Gynaecology, AIIMS, wrote an email to the Union of India counsel Aishwarya Bhati, seeking clarification on whether they should conduct “foeticide” before the procedure. In lay terms, this means ending the life of the foetus in the womb, before it is removed. If foeticide was not performed, it would amount to a preterm delivery which would leave the baby at significant risk of mental and physical disabilities, Sharma wrote in the email.

An induced abortion involves taking pills to expel the foetus. However, in advanced pregnancies, there is a chance of the foetus being expelled alive. In 2017, the Ministry of Health and Family Welfare responded to the frequent pleas for abortion in the courts, and issued a guideline for pre-abortion foetal demise. As per this procedure, doctors need to inject potassium chloride into the foetal heart prior to termination. This guideline aligns with the one issued by the World Health Organization (WHO) as well as the Royal College of Obstetrics and Gynecologists (RCOG) in the UK.

Following the email from Sharma, the case was heard again by the same bench of Justices Nagarathna and Kohli. The decision this time was split. The order stated that “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.” That was when the case went to a higher three-judge bench.

Many argue that Sharma’s email seeking clarification (on foeticide) was uncalled for. Given that the pre-termination foetal demise procedure has been part of the guidelines by the health ministry for at least five years now, this clarification was not necessary, said Subhasri Balakrishnan, an abortion service provider for many years now. She is also part of CommonHealth, a rights-based coalition of organisations and people advocating for sexual and reproductive rights of women and marginalised communities.

Doctors’ bias

“While medical professionals are seen as subject experts, they are also part of the same community,” said Balakrishnan. “They also imbue all the patriarchal values, and biases that are there in society. Doctors are not trained to understand abortion as a human right. In the medical community, providing abortion is seen as a favour that comes with moral connotations, rather than as a person's right to choose.”

When the case went to the higher bench including Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Mishra, the Union of India said in its written submissions that the MTP Act is mindful of “moral and ethical dilemmas faced by doctors during termination of late term pregnancies”.

These dilemmas had been considered when the Act was amended to fix the cut off to 24 weeks in 2021.

“Several doctors are hesitant to conduct late term abortions even before 24 weeks,” said advocate Sthavi Ashthana, an associate of Bhati. “Doctors talk about how, when they throw the child into the trash can, the baby cries. Doctors are hesitant to conduct the procedure.”

WHO guidelines note that a healthcare provider’s “conscientious objection” to abortion should not deter a woman from seeking abortion. In fact, the UK’s RCOG guideline goes further and suggests that a doctor with conscientious objection to abortion must tell women of their right to see another doctor.

‘Rights of unborn child’

When the case was heard on October 12, the narrative was charged with emotive references to “foetal heartbeat” and “rights of the unborn child”.

“Woman's autonomy is important of course...but equally, we must be conscious of the fact that whatever is done will affect the right of the unborn child,” CJI Chandrachud has been quoted as saying. “Who is appearing for the unborn child? ….How do you balance the rights of the unborn child? It's a living viable foetus. Today its chances of survival are there but very likely that child would be born with deformities. If she waits for 2 more weeks...to put the child to death is (the) only option?”

The story made headlines the next day, because it is indeed the first time the court has spoken of the rights of an unborn child in the context of abortion.

Asthana said that the Union of India did not oppose the abortion plea, but was looking for the "best solution for the mother and unborn child”. This was articulated by the Union of India’s written and oral submissions in the court, which extensively talked about the “rights of unborn child”.

Replacing the words “baby” with "foetus" as is mentioned in the Act, the written arguments--accessed by IndiaSpend--stated, “The MTP Act guarantees the right to reproductive choice and autonomy for the pregnant woman. However, it also recognises the need to balance the right to life of the unborn baby, especially in the later stages of pregnancy when the baby develops a heartbeat and can be said to be viable. In such cases, there is a restriction on the right to choice of a woman to terminate pregnancy, as that would have a direct impact upon the basic right of the unborn child to survive.”

To be clear, the foetal heartbeat develops at around five weeks of pregnancy.

Gonsalves said that the concept of “rights of unborn child” will have terrible consequences in India. “It means that the foetus at conception has certain fundamental rights and cannot be overridden. It could mean that all abortions are banned.”

Sunita Bandewar, one of the editors of the Indian Journal of Medical Ethics and an independent researcher in the area of bioethics and global health, said she was shocked and disturbed by the language used in the court. “The agenda of the 1971 Act was population control. Pro-life debates were not part of the discourse, like they were in the US. The use of these words is new in the abortion narrative. Constitutionally, courts always upheld the rights of the full-fledged person, that is the woman, rather than the unborn child,” said Bandewar, who has worked on several major studies on abortion rights in India.

Balakrishnan of CommonHealth said that the use of the words “rights of unborn child” in court is concerning. “This argument pits the interest of the adult woman against that of the foetus’s interest--the adult woman who is here and now, versus the foetus who does not have an independent entity either legally or biologically. By interest I mean not just medical interest, but also interests with respect to mental health and social circumstances.”

The key question here is “viability”--which means that the foetus has some chance of survival after its expulsion during an induced abortion. This category is arbitrary, since it is dependent on the technology existing at any given moment in time.

“If you go back 50 years, a foetus that was six months old was sometimes not viable,” Bandewar points out. She argued that as medical science continues to advance, “There will be a time when even with four weeks' pregnancy, the foetus may be viable. This argument is a slippery slope.”

“The MTP law was made in the 1960s, when the method used for abortion was scraping and vacuuming, which has consequences for the pregnant woman. But at least for the last 10 years, technology has changed,” said Gonsalves.

Save the life of a woman

If one goes strictly by the lawbook, the MTP Act allows for abortion after 24 weeks of pregnancy only if there is a threat to the woman's life, or if there is a foetal anomaly.

In the present case, the woman’s lawyer Amit Mishra argued that postpartum psychosis is serious and that his client needs an abortion to save her life. This comes under Section 5 of the Act.

“She said that she is not able to survive a single day without medication. She gets hallucinations and delusions, and has attempted suicide in the past. She also said she has caused harm to her first son in this condition. Her mother-in-law takes care of both children now.”

A 2008 study of 82 postpartum women who were admitted to the psychiatric ward of the National Institute of Mental Health and Neurosciences revealed that 38% of them reported suicidal thoughts, and 18% attempted suicide. The Kerala Federation of Obstetrics and Gynecology has been bringing out detailed maternal mortality reports from the state. In 2019, suicide was the leading cause of maternal mortality, accounting for about 18% of all maternal deaths in the state.

However, the AIIMS medical board told the court that the mother’s condition was being “controlled on medications”. Also, the risk of exacerbating the condition is the same even post delivery. Shubhangi Parkar, a senior psychiatrist who is now the dean of the Vedanta Institute of Medical Sciences in Palghar, near Mumbai, said that this postpartum psychosis can be exacerbated even after abortion.

On October 16, the three-judge bench of the Supreme Court in its order went strictly by the lawbook, and said that the MTP Act allows for abortion after 24 weeks of pregnancy only if there is a threat to the woman's life, or if there is a foetal anomaly. Since the medical report did not support these claims, the plea was rejected.

After the order was passed that evening, lawyer Mishra’s client was distraught. “She asked me, ‘Jab main hi nahi rahungi to baccha kya karega’,” he said.

Amba Salelkar, a Chennai-based lawyer who works on disability rights, said that any ground for abortion on the grounds of disability, either of the mother or the foetus, is problematic. The MTP Act allows abortion at any stage in the pregnancy on eugenic grounds, meaning in case of detected foetal anomalies.

“Abortion laws should be agnostic to any kind of reasoning. The choice of the woman should be paramount,” Salekar said, referring to the Nairobi Principles on Abortion, Prenatal Testing and Disability.

Salelkar said that this particular case is concerning because the state barely supports pregnant women suffering from psychosocial distress.

“The women who suffer psychosocial distress are at risk of losing custody of their children, if their partners decide to proceed against them,” Salelkar pointed out. “Their children can be declared children in need of care and protection under the Juvenile Justice Law. The court should have also considered the impact on her living children.”

In its 2022 guidelines, the WHO said that abortion should be “fully decriminalised” and that any ground-based approaches, gestational age limits, third-party authorisations and provider restrictions should be removed.

The case under review begs the question: Why was no exception made for this Delhi woman, especially when in so many cases, abortion was granted at late-term pregnancy?

Asked why the state had supported abortion in some other cases, Asthana said, "The circumstances of those cases were different. It was either a case of pregnancy resulting from sexual assault or foetal abnormality."

Jain of Jindal Global Law School points out that this new judgement has taken away all discretion from the courts after 24 weeks of pregnancy.

The inconsistency around abortion jurisprudence is coming from what constitutes “good” and “bad” abortions, argued Jain. “Some abortions are considered justifiable in cases of rape cases, or foetal anomalies, or when the person involved in a minor. If the person coming to court is an ideal victim, the court is more likely to grant abortion. This woman did not fit the category.”

Lawyer Mishra said that his client was being discriminated against because she was a married woman. “Say she was not a married woman but a rape victim or single or disabled, she would have got a favourable order.”

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