In yet another verdict that pushes the maximum age of a foetus by when a woman is permitted by law to terminate her pregnancy, the Delhi High Court today allowed a 26-year-old woman to abort her 33-week-old foetus. Mercifully, however, her reason was biological rather than sociological.
The woman had moved the court, claiming “cerebral abnormality” of the foetus, saying her mental and physical health and the child’s well-being was at stake.
In a 33-page judgment, a single judge bench of Justice Pratibha Singh said, “The court has clearly been able to gauge the mental trauma affecting the parents, their economic and social conditions, as also, the fact that the Petitioner is taking a cautious and well-informed decision, while seeking termination of pregnancy. She has understood as to what termination of pregnancy entails at such an advanced stage.”
“The ultimate decision in such cases ought to recognise the choice of the mother, as also, the possibility of a dignified life for the unborn child,” the court said, considering the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971, interactions with the woman and senior doctors of the LNJP Hospital, who gave their opinion in the medical report, and perusing the report of the hospital’s medical board.
“Keeping in mind these two factors, the Court comes to the conclusion that the mother’s choice is being made in a completely bona fide manner. There is considerable doubt and risk involved in the unborn child’s chances of leading a dignified and self-sustaining life, based on the medical evidence and reports. Considering this position, this Court holds that the medical termination of pregnancy ought to be permitted in the present case,” the court ruled.
The court allowed the woman to undergo abortion “immediately” at the “LNJP Hospital, or the GTB Hospital, or an approved medical facility of her choice” as per the MTP Act under the “supervision of a properly constituted medical team”. The Delhi High Court said before the woman underwent the procedure, she would be once again “informed of the procedure being undertaken”, and her “informed consent” will be obtained.
The woman “shall undergo the said medical termination of pregnancy, at her own risk, as to the consequences of the same”, the court said.
Was the court medically callous?
No. The high court said it was convinced that, as a mother, the woman had weighed the process of abortion with the “unpredictability and the risks involved, considering the condition of the foetus”. It said factors such as the woman’s mental and physical health, the risk of the child if born suffering from a serious physical or mental abnormality, the likelihood of the child being born with deformities, and living with deformities, coupled with the risks of surgery at such a nascent stage after being born, the results of which are also not conclusively known, and the lingering question as to whether the child would be self-sustaining or not, “tilts the court’s mind in favour” of the woman’s plea.
The high court observed that the medical board at the LNJP Hospital was “unfortunately” unable to predict or give a categorical opinion on the “degree of the handicap” or on the quality of life of the child after birth, with “certainty”. The court opined that such unpredictability and risks “ought to weigh in favour of the woman seeking termination of pregnancy”.
The Delhi High Court made certain observations on the report given by the medical boards. While observing that their opinion was of considerable importance for the assistance of the courts, such opinions could not be “sketchy and fragmented” and should be “comprehensive in nature”. “In such cases, speediness coupled with qualitative reports is of utmost importance,” it remarked.
Does the judgment uphold the law on abortions?
Justice Singh said that he had perused the provision of the MTP Act, which relaxed the conditions of the length of pregnancy in cases of “substantial foetal abnormalities”, but the law did not define what constituted “substantial foetal abnormalities”. The court took the help of external material for interpreting the meaning of the term.
The judge said the question of what would constitute “substantial foetal abnormalities” was dependent not only upon the medical conditions of the foetus but also on the broad public policy of the particular state or country.
The high court said, “Courts have permitted termination of pregnancy even at an advanced stage i.e., even in the ninth month if substantial foetal abnormalities are detected in the foetus”. It observed, however, that in judicial precedents examined by the court, the medical board in those cases gave an opinion in favour of termination of the pregnancy.
Conclusive part of verdict
The court said there should be certain standard factors, including the medical condition of the foetus, on which the board ought to base its opinion while submitting a report on such cases. It said that while using scientific or medical terminologies explanations in “lay-person terms” on the effect of such conditions should be mentioned. In the alternative, medical literature could be given along with the opinion and the medical board should interact with the woman in a “congenial manner”, and assess her physical and mental condition and this should form part of the report.
The court said that the board’s opinion should mention the risks for the woman in either continuing the pregnancy or undergoing termination.
The high court observed further that while a woman’s choice to give birth as she was the “ultimate giver of life in this world”, beyond the omnipresent, cases seeking termination, like the one before it, highlighted the “severe dilemma that women undergo while taking a decision to terminate her pregnancy”.
The court recognised that even with the emergence of modern technologies to detect abnormalities in an unborn child, the issues surrounding termination and abortion were bound to become more and more complex.
Possible medical complications arising out of late abortion
All abortions, early or late, carry some risks. Most complications are minor — pain, bleeding, infection and post-anaesthesia complications. Others are major — uterine atony and subsequent haemorrhage, uterine perforation, injuries to adjacent organs (bladder or bowels), cervical laceration, failed abortion, septic abortion, and disseminated intravascular coagulation.
In an article in The Journal of Obstetrics and Gynaecology of India, Nikhil Datar — of the relevant Dr Nikhil Datar & others Vs Union of India case (famously known as the “Niketa Mehta case”) — wrote that such judgments pose a “serious dilemma” for the gynaecologist. The amendment in the MTP Act last year resolved a “few dilemmas and created new ethical and legal issues”, he wrote in the article, “MTP After 20 weeks: When & How?” Abortion was permitted only till 20 weeks according to the MTP Act of 1971.
Thankfully, the our understanding of the science of the human body and technologies of treating it have improved remarkably in the past five decades. This allows doctors to take greater risks in terminating pregnancies. For example, intra- or extra-amniotic instillation of saline or aspirotomy are not performed anymore. With advent of prostaglandins, abortions are induced and products of conception deliver through vaginal route.
Obstetricians can now also easily induce labour at various stages of gestation for maternal and foetal indications to save the mother and the baby. Although the intent of induction of labour and termination of pregnancy are quite mutually distinct, the medical procedure to cause expulsion of products of conception remians the same. Procedures of inducing expulsion of the foetus, whatever the intent may be, are safe and have been used for a long time.
Yet, the risk may increase as the gestational age advances. An obstetrician would normally compare the risk of complications in later gestation with early gestation. If termination is not done at that point, the woman will have to undertake full-term delivery. Thus, risk of a termination of pregnancy in late gestation has to be compared with risk of childbirth.
As for the odds, the risk of complications in an abortion even at late gestation is, at best, the same as that in the childbirth and not more. Thus termination at late gestation is not a medically challenging procedure at this point of time.
A critical issue here is that while the morals and laws of different places on earth about the rights of the woman and those of her unborn may vary, there is a possibility that by the time the woman decides — or is permitted — to abort, the foetus might have started acquiring the ability to survive outside the womb! This would be like a rather premature delivery where the baby survives. The possibility, though remote, of such a survival is dealt with the term “viability”.
Obstetricians can successfully resuscitate the baby born after the age of viability to provide the best chance of survival. However, this does not provide any legal right to the foetus/baby, which makes it a complicated issue for pro-life activists (conservatives) even as this proves advantageous to pro-choice activists.
The variable called “viability” during the gestational period depends on the quality of neonatal care available. Obstetricians, in the past, considered an arbitrary cut off of 28 weeks as the “age of viability”. It is now considered at 24 weeks. Even the amendment in the MTP Act in 2021 in India or any relevant law in any part of the world does not lower the age of viability to 20 weeks.
In the US, while the total abortion-related complication rate of all sources of care including emergency departments and the original abortion facility is estimated to be about a low 2%, the incidence of abortion-related emergency department visits within six weeks of the initial abortion procedure is as high as 40% [Source: Manyeh AK, Nathan R and Nelson G’s “Maternal mortality in Ifakara Health and Demographic Surveillance System: Spatial patterns, trends and risk factors”, 2006-10].
Here, epidemiology must be considered. The estimated abortion complication rate for all healthcare sources is about 2% for medication abortion, 1.3% for first-trimester aspiration abortion, and 1.5% for second-trimester or later abortions. The mortality rate in the US related to induced abortion was 0.6 deaths per 100,000 abortions.
In the United States, mortality from septic abortion rapidly declined after the legalisation of abortions. The risk of death from septic abortion increases with the progression of gestation.
And in the case of carelessness or incompetence of the doctor, incomplete evacuation of the products of conception leads to the collection of blood in the uterus, causing overdistention and atony, which results in haemorrhage. It can even lead to infection and possible sepsis.
Injury from the surgical procedure itself depends upon the method used and includes vaginal or cervical lacerations, as well as uterine, bowel, or bladder injury.
However all the risk factors above, except the statistics of 40% patients’ need for emergency visits post-abortion, are not specific to post-20 weeks medical termination of pregnancy. They might happen in cases of early abortions too.
Legal hassle for the doctor
However, it must be noted that the doctor may be hassled legally. Consider the cases of rape survivors, for whom the cut-off time is 24 weeks of pregnancy. But for substantial foetal anomalies, subject to the permission of the medical board, termination can be done even after 24 weeks. Thus, if termination is done after 20 weeks for “failure of contraception” or after 24 weeks for rape survivor, it will still be considered as violation of the MTP Act, the article referred to above informs. In such a case, Section 312 of IPC would come into force, with the gynaecologist slapped with criminal charges, leading to her or his arrest, imprisonment or the cancellation of licence for the medical practice.
— With medical science inputs from Surajit Dasgupta
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