The right to be born alive is non-negotiable

KP Singh

Former DGP, Haryana

WHAT could have been just another case of medical termination of pregnancy (MTP) has turned out to be a substantial question of law involving issues of recognising the sanctity of professional ethics, preserving constitutional morality, protecting rights of the unborn child and respecting an individual’s right on one’s own body. These issues cropped up last week during the hearing before a three-judge Bench of the Supreme Court of the petition of a woman seeking permission to abort her 26-week pregnancy.

On October 11, the opinion of an all-women two-judge Bench of the court was divided, warranting the constitution of a larger Bench when the fact was brought to its notice by the Central Government that the heart of the foetus to be aborted with its permission was beating and it was a viable child. Earlier, considering the prayer of the woman that she was suffering from lactational amenorrhea and depression, the same Bench had concurred in allowing the termination of her pregnancy after obtaining a medical report from AIIMS.

The review of the MTP permission granted earlier was necessitated when the doctor who was assigned the task to perform the MTP wrote a mail to the Additional Solicitor-General, seeking directions from the SC whether he could stop the heartbeat of the foetus before terminating the pregnancy, as is usually done while performing the process on an abnormal foetus but is generally not done in the case of a normal foetus. The doctor wrote that the foetus appeared to be ‘viable’, indicating a ‘strong possibility of survival’.

It is not that a pregnancy of 26 weeks or more was to be terminated for the first time. On September 7, 2017, the SC even allowed a teenaged rape survivor to abort her 32-week pregnancy. The instant case is unique because, perhaps haunted by the Hippocratic oath and professional ethics, the doctor requested for directions from the SC to unburden him from the guilt of performing an act akin to homicide.

As per Modi’s Medical Jurisprudence and Toxicology, a treatise on forensic medicine, human life begins in the mother’s body at the moment of conception. Within 7-10 days of conception, the ovum gets implanted on the wall of the womb; up to three months, the ovum is a lump of flesh. After that, the placenta is formed and the organs start appearing and showing their presence on the foetus one by one. A foetus of more than seven months is called a “viable child”, capable of being reared if born prematurely.

Causing miscarriage and abortion is prohibited in law and criminalised the world over. The Indian Penal Code, too, recognises the right of a foetus to be born alive and even penalises the pregnant mother if she voluntarily agrees to undergo abortion. Civil laws accord the status of a legal person to an unborn child and protect his/her right to inherit property. At the same time, the MTP Act, 1971, gives women the right to abort in certain situations.

The Act strikes a fair balance between the genuine need for a safe abortion in certain situations and the right of a foetus to be born alive. As per the Act, pregnancy up to 24 weeks may be terminated by following the prescribed procedure, that is, if the continuance of the pregnancy would involve risk to life of the pregnant woman or grave injury to her physical or mental health or there is substantial risk that if the child is born, it would suffer from physical or mental abnormalities. A pregnancy of more than 24 weeks may be terminated only with the permission of the court.

In the case pending before the SC, none of the circumstances that would justify the MTP appears to be present, as the foetus is reported to be normal. The woman wants to get rid of the pregnancy because she is said to be suffering from lactational amenorrhea and depression, which cannot be termed as a life-threatening situation, but may cause discomfort and inconvenience to her.

In such a situation, the issue before the SC is not merely a question of law and procedures; it involves adjudication on competing demands of the stakeholders. One argument in favour of allowing the MTP is that the rights of a woman on her body must triumph, respecting her individuality, which she may exercise by choosing not to give birth to a child. This argument appears to be logical on the face of it, but it needs a close scrutiny as not to give birth and not to give birth to a foetus in the womb are two distinct propositions. On the other hand, the argument against allowing MTP is based on the legal and constitutional sanctity of the unborn child’s right to be born alive.

The mail of the doctor seeking a clarification on the question of stopping the heartbeat of a viable foetus adds another dimension to the issue. It must not be taken as an individual’s reflection; it is a statement of the perpetual professional dilemma and mental agony of the whole medical fraternity, which needs a permanent solution. It has also put the judiciary in a fix over whether such an issue should be decided by resorting to the power of logic or listening to the heartbeats of the unborn.

On October 12, the three-judge Bench observed that it could not kill the child as no abnormality had been noticed in the foetus, as per the medical examination report. At the same time, the Bench said that it had to balance the rights of the unborn child vis-a-vis the rights of the woman. Prudence suggests that it is not advisable to intervene in a natural process all the time; let nature take its own course.

The judiciary is divinity personified and has the sacred duty to stand up for all those who cannot fend for themselves. There should be no doubt that the unborn child has the non-negotiable right to be born alive.

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