Despite the recent activism in this area, yet another woman has approached the Supreme Court seeking permission for an abortion. She is a married woman, suffering from postpartum depression, with a pregnancy of six months. The foetus has no abnormalities. Her case does not fit under any conditions for which the law allows abortion. The opinions of the judges in the apex court are divided. Since the pregnancy is an advanced one, the heart of the foetus would have to be medically stopped. Otherwise, a live birth would occur and the child would suffer due to severe prematurity. The court is viewing this as a moral conundrum. However, one must understand that extinguishing potential life with or without a procedure is a part of every abortion irrespective of the gestational age. On sonography, heart sounds can be heard as early as six to seven weeks and the human form can be seen at around 11 weeks. Therefore, any abortion at whatever gestational age will mean extinguishing potential life.

In modern obstetrics, termination of pregnancy is carried out by administering medications that induce and mimic natural labour. It is not a surgical procedure. Before 24 weeks the procedure of inducing the process of separation and expulsion is enough to stop the heart. In advanced pregnancies, a sonography-guided injection is administered to stop the heart of the foetus and then the process of expulsion from the womb is induced. Foetal medicine experts carry out this procedure routinely across the world and India. In 2019, the Government of India circulated a guidance note on this procedure to all the major hospitals where permanent medical boards are situated. The recommendations for this procedure have followed the Royal College of Obstetricians and Gynaecologists (UK) guidelines, which have been in practice for many years. Scientifically, the risk in late termination is not any more than that involved in childbirth.

This brings us to the question: Does the foetus have a right to survive independently of the mother? Jurisprudence in countries where abortion is legal does not recognise the rights of a foetus as such. A foetus is considered “another organ of the mother”. In fact, the phrase unborn child is considered legally incorrect. The foetus when born alive is a “child” and a child has all the human rights. The prestigious Nuffield Council on Bioethics in its report, “Critical care decisions in foetal and neonatal medicine”, states: “The moment of birth [is] the significant point of transition not just for legal judgement about preserving the life but also for moral ones.” This point was echoed in the order by Justice Nagarathna in the recent case. She said, “It would be incongruous to conclude that a foetus has a separate identity from the mother.”

If the foetus is treated as having an individual identity or personhood, then all terminations of pregnancy would be illegal and we will go back to the situation before 1971 when women used to die trying to have unsafe abortions. Unsafe abortions continue to be one of the five common causes of the death of women around the world. A key point of consideration is also that those who believe that “abortion is killing” will never seek an abortion, whether the law allows it or not. However, for those who need an abortion due to their own challenging circumstances, the law must offer the option of a safe and legal abortion.

No one disagrees with the fact that an abortion at any stage is extinguishing potential life. It is something that a woman may choose to do due to compelling circumstances and is allowed in law in exceptional situations. Here comes the question of “sanctity of life vs quality of life”, and “quality of mother’s life vs quality of foetus/child’s life”. Compelling a woman to carry a pregnancy can cause a grave injury to her mental health. Currently, the law allows termination at any point in time when there is a severe foetal abnormality, risk to the woman’s life or grave injury to physical health. However, we must also take into account the risk of injury to a woman’s mental health. Despite the recent developments in abortion law, the law still does not allow rape victims (even if they are minors) or women with severe mental health problems to terminate their pregnancy after 24 weeks.

Women must feel free to make decisions about whether to continue or terminate the pregnancy knowing that they have access to safe abortions without the pressure of arbitrary limits and the imposition of a State or third person’s morality. We must not forget that in 1971, Parliament had passed the Medical Termination of Pregnancy Act to prevent the “wastable damage to women’s health”. We must continue to reduce this wastable damage to women’s health wherever possible and acknowledge the realities of a woman’s lived experience with pregnancy, abortion and childbirth.

Nikhil Datar is a gynaecologist and activist in the field of health rights. The views expressed are personal