The permission granted to a 26-year-old married woman by the Delhi High Court on Tuesday, December 6, to abort her foetus of about 30-33 weeks has become the focus of debates. A large number of people took to social media to express displeasure with Justice Pratibha M Singh's ruling. The verdict places paramount importance on the mother's will and her mental health, adding to the very few cases in India in which an abortion is permitted at an advanced foetal age. Justice Singh's ruling in this case where ethical and moral factors weigh high has added to the progressive jurisprudence on abortion laws in India, highlighting two crucial aspects – the legal interpretation of "significant foetal anomalies" in our social context, and the mental health of the mother.
The petitioner, who was married in November 2021 and conceived in March 2022, underwent an ultrasound in the 4th, 7th, and 16th week of the pregnancy at a diagnostic center in Noida. The reports stated no abnormality, though with an appropriate rider that "not all congenital abnormalities can be seen on ultrasound". However, in the next ultrasound in the 30th week of gestation, a cerebral abnormality was revealed. To be sure, the scans were repeated in two different diagnostic centers, with all three confirming the abnormality. The opinion stood that the abnormality was life-long, which would cause seizures in the child. MRI of the foetus was suggested and the distressed couple went to GTB Hospital in Delhi, following which they approached the Delhi High Court with their plea to abort the foetus.
With no medical board at GTB for the Medical Termination of Pregnancy (MTP) Act, the board at LNJP Hospital was asked to take up the matter. The board, after being urged to expedite the matter, facilitated the foetal MRI and submitted the report, while denying permission for abortion. While the brain abnormality was persistent, the medical board suggested a couple of surgeries early in the life of the child as a way to manage the abnormality, though the quality of life could not be predicted. Further, the High Court interacted with a neurologist and gynaecologist, as well as the pregnant woman and her husband, before arriving at the verdict.
India's MTP Act 1971, amended in 2021, states that for medical termination of pregnancy to be permitted when the foetus is between 20 to 24 weeks, "substantial foetal anomalies" must be present. Only when the pregnancy exceeds the time frame, the doors of the court can be knocked at, as in the present case.
Medically terminated pregnancy has always been a contentious issue for society in India, which is split between anti-abortion (pro-life) and pro-abortion (pro-life) schools of thought. India has always had a relatively progressive MTP Act, amended last year to add more progressive clauses. Though the legalities contradict the lack of safe abortion practices and access in the country, that is a matter of different debate. The Supreme Court (SC) in a 2009 verdict placed the woman's right to reproductive choice within the dimension of personal liberty as stated in Article 21(a) of the Constitution of India. The judgement, while laying the state's compelling interest to protect life, went on to state that "taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children."
The current Delhi High Court judgement by Justice Singh is significant in many ways as it encompasses a holistic approach to deciding on abortion rights. It delves deep into what constitutes "substantial foetal anomalies". While the term is broad when we factor in the social circumstances in which a child with significant medical ailments has to grow up, an important dimension to the ruling comes to the surface. The judgement relies on a report titled "Termination of Pregnancy for Foetal Abnormality in England, Scotland, and Wales" by the Royal College of Obstetricians and Gynaecologists in this context. In the report, the importance of society being adaptive and accepting of disability, the ability to live alone, and the ability to communicate one’s suffering have been laid as factors to be considered to rate the severity of the condition.
The "dignified life of the unborn" has been accounted for in the Delhi High Court judgement, and rightly so, for India has a long way to come in terms of being disabled-friendly. Whether or not to see one's child live a life that is curtailed in multiple aspects owing to a disability, is a choice that must ultimately rest with the pregnant individual.
Another important aspect discussed in the judgement is the mental health of the pregnant person. India's MTP Act (Section 3(2b)) does mention the mental health of the mother to be taken into account while considering the case. In interacting with the petitioner, the aggrieved woman and her husband, Justice Singh documented the "mental trauma" she was under. The mental health of an individual is situated in one's self-experience, in one's environment, and in one's society. The economic and social background of the parents, in this case, were considered before deciding that the birth of a child with significant brain anomaly would amount to injury to the mental health of the mother.
It must also be noted that both the above-mentioned aspects work in tandem with each other. In her judgement, Justice Singh cites the parliamentary debate during the amendment of the MTP Act 1971, which states that India is a rare country where permission to abort a foetus is allowed "under a broad range of circumstances, acknowledging a woman's actual or reasonably foreseeable environment and her social or economic circumstances".
Much of the outrage over the judgement hovers around the advanced foetal age, of about 33 weeks. With the advancing foetal age, the personhood of the foetus grows in our collective perception and termination increasingly seems an immoral act for anti-abortion supporters. The foetal age is quite advanced in this case, and the MRI at LNJP pegs the age of the foetus at 30 weeks and 2 days. It is worth asking if similar reactions would be elicited if the fetus was 24 weeks, confirming the legal upper limit in the MTP Act.
Another issue of contention is based on the report of the medical board of the LNJP hospital where corrective surgery in the 10th week of life was suggested. It is being wrongly observed by many that such a repair surgery would correct the congenital anomaly completely. With serious conditions like ventriculomegaly and corpus callosum agenesis, all reports clearly state that the quality of life would be hard to predict. In such a case, the choice of the mother, who has been made aware of the possible outcomes, must be of paramount importance.
In medically terminated pregnancy cases that reach the courts, there will always be grey areas with descriptions of “significant foetal anomalies”, correlated with the evaluation of mental health and possible outcomes where repair surgery or medical intervention may be suggested. Many times, courts have denied an abortion even with all boxes ticked for allowing it. In a case heard by the Orissa High Court, a woman with severe disability and mental health ailments who got pregnant following her rape was denied permission to abort her 24-week-old foetus. One must ask if there can be clearer guidelines laid by courts that account for a holistic overview of the matter.
In this particular case decided by Justice Singh, there is also the question of a long gap in prenatal check-ups. The important mid-trimester anomaly scan, ideally done at the 20th week of pregnancy, often including the triple test carried out to check for foetal abnormalities, has been missed. While this adds to the ethical dilemma, it also points to possibilities of negligence, lack of awareness, or lack of appropriate facilities for requisite pre-natal check-ups. Access to advanced foetal check-ups like 3D or 4D scans to detect nervous system anomalies are issues that such cases bring up.
When each day becomes important in such cases, the lack of a medical board at a large hospital like GTB requiring the petitioner to visit another hospital which showed no urgency in taking the matter up is another matter of concern. While the mental health component in MTP Act is being given due importance, it is also necessary that the courts seek the professional opinion of psychiatrists or psychologists, who must also be on medical boards (there were none in this case) constituted.
While anti-abortion supporters see this Delhi HC ruling as judicial overreach, those who support abortion rights view this as a progressive ruling in the long tradition of Indian jurisprudence concerning maternal rights. As Justice Singh writes, “Freedom of a pregnant woman to take an informed decision regarding her pregnancy cannot be curtailed by rigid adherence to the letter of law.”
Sambit Dash is an Assistant Professor in the Department of Biochemistry at the Manipal Academy of Higher Education. Views expressed here are the author’s own.