A delicate balancing act: 'Fetal viability' in India's abortion debate

The Supreme Court of India has been engaged with a complex and deeply divisive case concerning the termination of a pregnancy at 26 weeks.

The case is about a 26-week pregnant married woman who, claims to be facing post-partum depression and other health issues, has approached the apex court seeking an abortion.

While the SC initially agreed to her plea, a later split verdict and the involvement of the Chief Justice of India D Y Chandrachud has reignited the debate between pro-life and pro-choice advocates.

In this article, we will explore the concept of 'fetal viability' in abortion and the importance of considering the rights of an unborn child in such cases.

The evolution of abortion laws in India

Before diving into the heart of the matter, it's essential to understand the legal framework in India surrounding abortion. The Medical Termination of Pregnancy Act established in 1971, originally permitted abortions until 20 weeks of pregnancy until 2021.

However, on September 29, 2022, the Supreme Court of India, consisting of Justices D Y Chandrachud, A S Bopanna, and J B Pardiwala, extended the legal timeframe for abortion from 20 to 24 weeks, allowing all women, regardless of their marital status, to exercise their reproductive autonomy in choosing a safe and legal abortion.

The challenge of fetal viability

One of the central issues in this case revolves around the concept of 'fetal viability.' In simple terms, fetal viability refers to the point in pregnancy at which a fetus can potentially survive outside the mother's womb.

In this particular case, a report from the All India Institute of Medical Sciences (AIIMS) indicated that the fetus was viable, having a heartbeat. Aborting it at 26 weeks would either halt this heartbeat or lead to a premature birth with potentially severe mental and physical complications for the child.

The rights of the unborn child

The involvement of the CJI has put forth a crucial argument saying the highest court of the land cannot overlook the rights of an unborn child.

Justice Hima Kohli's observation that unwanted pregnancies, whether due to contraceptive failure or sexual assault, carry the same consequences that challenges us to delve into the ethical and moral dilemmas surrounding abortion.

Pro-choice perspective

Pro-choice advocates argue that a woman's right to control her own body and make decisions about her reproductive health is paramount. They believe that a woman should have the right to choose whether to continue a pregnancy, especially when it threatens her physical or mental health.

The 2022 amendment to the abortion law was a significant step forward, recognising the unique circumstances some women face.

Pro-life perspective

On the other side of the spectrum, pro-life advocates contend that the rights of the unborn child must be protected and respected. They argue that life begins at conception and that aborting a viable fetus is equivalent to ending a human life.

In their view, society must prioritise the protection of the most vulnerable, the unborn.

A delicate balancing act

The SC has taken a multifaceted approach. They've tasked AIIMS with assessing fetal abnormalities, the potential impact of prescribed drugs on the pregnancy, the woman's mental and physical health, and has explored alternative medications that prioritise the welfare of both the petitioner and the fetus, post which the court will consider the issue again on October 16.

It reminds us that there are no one-size-fits-all solutions, instead, each situation demands careful, compassionate, and nuanced consideration that respects the autonomy of women while acknowledging the welfare of the unborn child.