RIGHT TO LIFE OF UNBORN CHILD

Right to life is a very wide concept and is recognized in the Indian Constitution in Article 21. There is ferocious debates both nationally and internationally regarding the commencement of the right to life in a female ie in the womb.

International Law on Fetus

Fetal rights are the moral rights or legal rights of the human fetus under natural and civil law. The term fetal rights came into wide usage after the landmark case Roe v. Wade that legalized abortion in the United States in 1973. The only international treaty specifically tackling fetal rights is the American Convention on Human Rights which envisages the right to life of the fetus. While international human rights instruments lack a universal inclusion of the fetus as a person for the purposes of human rights, the fetus is granted various rights in the constitutions and civil codes of several countries. Many legal experts believe there is an increasing need to settle the legal status of the fetus.

The convention was ratified by twenty five countries of the Americas (two countries later denounced the convention leading the current number of ratifiers to be twenty three ) in 1973–1993. Mexico ratified the convention with the reservation that the expression “in general” concerning the fetal right to life does not constitute an obligation and that this matter falls within the domain of the states. While the convention may be interpreted to permit domestic abortion laws in exceptional circumstances, it effectively declares the fetus a person. However, only a minority of state ratifiers completely prohibit abortion without allowing for an exception when the pregnant woman’s life is in danger (Dominican Republic, El Salvador and Nicaragua).

Based on the 1959 Declaration of the Rights of the Child, preambular paragraph 9 of the Convention on the Rights of the Child (CRC) states that “the child… needs… appropriate legal protection before as well as after birth”, but due to ambiguity the legal protection of the fetus conflicts with the rights of a pregnant girl under the same Convention. Such conflict is sometimes called maternal-fetal conflict. Under CRC, the rights of a pregnant girl are interpreted as superseding those of her fetus. The states retain the power to decide for themselves what prenatal legal protection they would adopt under CRC. A proposal to grant fetus the right to life from conception was put forward by Belgium, Brazil, El Salvador, Mexico and Morocco during drafting of the International Covenant on Civil and Political Rights (ICCPR), but it was rejected in favor of less stringent wording. At the same time, ICCPR prohibits the execution of pregnant women

The World Medical Association Declaration on Therapeutic Abortion notes that “circumstances bringing the interests of a mother into conflict with the interests of her unborn child create a dilemma and raise the question as to whether or not the pregnancy should be deliberately terminated”. The Dublin Declaration on Maternal Health, signed in 2012, prioritizes fetal right to life by noting that “there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child”. Several organizations, such as World Health Organization (WHO) and Human Rights Watch prioritize women’s reproductive rights over fetal rights.

Under European law, fetus is generally regarded as an in utero part of the mother and thus its rights are held by the mother. The European Court of Human Rights opined that the right to life does not extend to fetuses under Article 2 of the European Convention on Human Rights (ECHR). In H. v. Norway, the European Commission did not exclude that “in certain circumstances” the fetus may enjoy “a certain protection under Article 2, first sentence”. Three European Union member states (Ireland, Hungary and Slovakia) grant the fetus the constitutional right to life. The Constitution of Norway grants the unborn royal children the right of succession to the throne. In English common law, fetus is granted inheritance rights under the born alive rule.

The legal debate on fetal rights sometimes invokes the notion of fetal viability. Its primary determinant is fetal lung capacity which typically develops at twenty-three to twenty-four weeks. The twenty-three weeks is usually regarded as the lower bound of fetal viability because technology has been unable to surpass the limit set by lung development. It was nonetheless stated that technology has made it possible to regard the fetus as a patient independent of the mother. In Winnipeg Child and Family Services v. G., the judges argued that “technologies like real-time ultrasound, foetal heart monitors and foetoscopy can clearly show us that the foetus is alive” and thus the born alive rule is “outdated and indefensible”.

The creation of human embryos for all research purposes is prohibited by the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine. However, similarly to the abortion debate, in the normative debate on embryo research two views can be distinguished: a “fetalist” view focusing on the moral value of the embryo, and a “feminist” view advocating the interests of women, particularly candidate oocyte donors.

Recognition of Fetal Rights by various countries

Several countries in this world recognises the rights of the fetus at various stages. Certain countries permit the protection of fetus from its inception, while some do not.

The Eighth Amendment of the Constitution of Ireland gave “the unborn” a right to life equal to that of “the mother”. In 2018, the Supreme Court of Ireland ruled that the fetus’ only inherent constitutionally protected right is the right to be born, overturning a High Court ruling that a fetus additionally possessed the children’s rights guaranteed by Article 42A of the Constitution. On 25 May 2018, a referendum was passed which amended the Constitution by the substitution of the former provision recognising the right to life of the unborn, with one permitting the Oireachtas, the Irish Parliament, to legislate for the termination of pregnancies. This amendment took effect when it was signed into law by the President of Ireland on 18 September 2018, and abortion was governed by the Protection of Life During Pregnancy Act 2013 until it was replaced and repealed by the Health (Regulation of Termination of Pregnancy) Act 2018, which took effect on 1 January 2019.

In the United States, as of 2014, thirty-eight states provide certain level of criminal protection for the unborn, and twenty-three of these states have laws that protect the fetus from conception until birth. All US states–by statute, court rule or case law–permit a guardian ad litem to represent the interests of the unborn. In 1999, the Unborn Victims of Violence Act was introduced into United States Congress which defines violent assault committed against pregnant women as being a crime against two victims: the woman and the fetus she carries. This law was passed in 2004 after the murder of Laci Peterson and the fetus she was carrying. In 2002, U.S. President George W. Bush announced a plan to ensure health care coverage for fetuses under the State Children’s Health Insurance Program (SCHIP).

The civil codes of several countries, such as China (including Hong Kong and Macau) and Russia, as well as some US states, grant fetus inheritance rights, usually under the born alive rule. In the civil code of Iran, fetus can inherit in case of abortion that took place due to a crime, as long as the fetus was alive even for a second after birth. Under the civil code of Japan, for the purposes of inheritance the fetus is deemed to have already been born. The civil codes of the Philippines and Spain envisage that donations to the unborn children can be made and accepted by “persons who would legally represent them if they were already born”. The same is allowed by the Malikis.

Alongside Norway, the Constitution of Bhutan grants the unborn royal children the right to succession, but only if there is no male heir.

Indian Legal Regime

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, describing it as intentionally “causing miscarriage”. Except in cases where abortion was carried out to save the life of the woman, it was a punishable offense and criminalized women/providers, with whoever voluntarily caused a woman with child to miscarry facing three years in prison and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine.

It was in the 1960s, when abortion was legal in 15 countries, that deliberations on a legal framework for induced abortion in India was initiated. The alarmingly increased number of abortions taking place put the Ministry of Health and Family Welfare (MoHFW) on alert. To address this, the Government of India instated a Committee in 1964 led by Shantilal Shah to come up with suggestions to draft the abortion law for India. The recommendations of this Committee were accepted in 1970 and introduced in the Parliament as the Medical Termination of Pregnancy Bill. This bill was passed in August 1971 as the Medical Termination of Pregnancy Act

Medical Termination of Pregnancy latest amendments

In late January 2020, the Union Cabinet amended the 1971 Medical Termination of Pregnancy (MTP) Act allowing women to seek abortions as part of reproductive rights and gender justice. The amendment also places India in the top league of countries serving women who wish to make individual choices from their perspectives and predicaments.

The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including rape survivors, victims of incest, differently abled women and minors. Failure of contraception is also acknowledged and MTP is now available to “any woman or her partner” replacing the old provision for “only married woman or her husband.” The new law is forward looking, empathetic and looks at a very sensitive issue with a human face.

India’s move comes at a time when the landmark Roe v. Wade in the Supreme Court of the United States (US) is under scrutiny.

“India will now stand amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. It is a milestone which will further empower women, especially those who are vulnerable and victims of rape,” Union Cabinet Minister for Textiles and Women and Child Development Smriti Irani wrote in her blog.

India’s move comes at a time when the landmark Roe v. Wade in the Supreme Court of the United States (US) is under scrutiny. That 1973 judgment protects a pregnant woman’s liberty to decide whether or not to have an abortion without needless government restrictions. A historic piece of legislation, it served as a beacon of hope for women around the world. Roe v. Wade is now shaking at its roots as a conservative US Supreme Court wants doctors performing abortions to get admitting privileges from a nearby hospital.

American women rightfully worry that the government could ring fence their options. A decision is not expected until later this year and stakes are high. The European Court of Human Rights has never spoken out on the question of abortion and whether or not it should be legalised. In fact, Ireland, a member of the European Council, legalised abortion only in 2018.

The Indian amendment says there is no limit for gestational age in case of fetal abnormalities. This addresses maternal mortality and morbidity arising from unsafe abortions. Women will also be spared the stress and agony of seeking permissions from courts as time runs out on them. The amendment clarifies the role of practitioners who hesitate to intervene in cases of rape and incest survivors.

According to Section 3 (2) of the MTP Act, 1971, a pregnancy may be terminated by a registered medical practitioner:;

Where the length of the pregnancy does not exceed twelve weeks, or
Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks. In this case, the abortion will take place, if not less than two registered medical practitioners are of opinion, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman (her physical or mental health); or there is a substantial risk that if the child were born, it would suffer from some physical or mental abnormalities to be seriously handicapped.

The proposed amendments introduce the following provisions:

For termination of pregnancy up to 20 weeks of gestation the opinion of one registered medical practitioner will be required, and for termination of pregnancy of 20-24 weeks of gestation opinion of two registered medical practitioners will be required.
Extending the upper gestation limit from 20 to 24 weeks for special categories of women which includes vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differentlyabled women, minors) etc.
Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of Medical Board to be prescribed subsequently in Rules under the Act.
Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorized in any law for the time being in force.

The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. The proposed amendments to increase upper gestation limit for termination of pregnancy for women in special category aim to strengthen access to comprehensive abortion care, under strict conditions, without compromising service and quality of safe abortion.

At present most countries allow elective abortions but only a few including Canada, China, the Netherlands, North Korea, Singapore, the United States, and Vietnam permit MTP after 20 weeks. The late termination of pregnancy is legally get conflict with the viability of the foetus (where a foetus is capable of living outside the womb) and risk of maternal mortality in case of unsafe abortion or risk related to delayed abortion.

Recent court cases for late-term termination of pregnancy

The MTP Act allows for termination of pregnancy up to 20 weeks of pregnancy. In case termination of pregnancy is immediately necessary to save the life of the woman, this limit does not apply (Section 5 of the MTP Act). There are however cases of diagnosed foetal abnormalities and cases of women who are survivors of sexual abuse who have reached out to the Court with requests for termination of pregnancy beyond 20 weeks. A recent report by the Center for Reproductive Rights analyzed some of these cases that have come to court in a comprehensive report.

Media has covered many of these cases actively. Listed below are some of the significant cases with requests for late term termination that have come to the court for permission.

In December 2017, a 13-year old rape survivor’s father approached the Bombay High Court seeking permission for the termination of 26-week foetus. The girl was repeatedly raped by her cousin. Considering the report of the medical board which claimed that there was greater risk to the pregnant girl’s life if continued., The Court held that the girl was physically incapable to deliver a child, and granted permission for termination.
A 15-year-old girl who had eloped to marry, sought permission from the Delhi High Court to abort her 25-week pregnancy. The medical board assigned to examine her case, however, reported that termination would pose serious risks to the lives of both the foetus and the mother. Subsequently, the High Court denied the girl permission to undergo an abortion.
A woman from Thane approached the Bombay High Court in December 2017, seeking permission to terminate her 22-week old foetus that was diagnosed as suffering from various infirmities. The report of the medical committee ascertained that the child, if born, may suffer from mental retardation, while admitting that terminating the pregnancy at this stage would be risky. After the petitioner expressed her willingness to take the risk, the Court permitted her to undergo abortion.
After the foetus of a 24-year-old woman from Pune was diagnosed with a cardiac anomaly, she approached the Bombay High Court seeking permission to abort her 24-week foetus. The medical board asked to examine the woman advised abortion while reporting that the child, if born, may have to undergo multiple surgeries. The Court consequently, granted permission for the abortion.
In November 2017, a woman approached the Bombay High Court for permission to terminate her pregnancy in 26th week of gestation on grounds of skeletal and neurological abnormalities. Further to the opinion of the medical board constituted by the court, she was granted permission to terminate her pregnancy due to fetal abnormalities incompatible with life.
Foetuses of two women, in their 29th and 30th week of pregnancy were both diagnosed with suffering from Arnold Chiari Type II syndrome. Based on the report of JJ Hospital in Mumbai, the Supreme Court in October 2017 held that both foetuses were identical and that the continuation of pregnancy would harm both, thereby permitting the termination of pregnancy for both women.
In October 2017, a 16-year old rape survivor’s father approached the Bombay High Court, seeking permission for the termination of his daughter’s pregnancy in 27th week of gestation. The High Court denied the request. The decision was made following a report presented by a panel of doctors who examined her, which suggested that an abortion at this stage would pose potential risks to her health.
In another incident in October 2017, a minor rape victim in her 23rd week of pregnancy had approached the Jharkhand High Court for permission to abort her foetus. While the medical board set up to examine the matter observed that it would be dangerous to abort at this stage, the board took it up as a challenge. The Court permitted the termination of pregnancy, and directed the government to make arrangements for the stay of the victim’s parents.
In October 2017, a 16-year old’s father had approached the Punjab and Haryana High Court to seek permission for the termination of her 26-week pregnancy that resulted from rape. The Court, following the report of the medical board that stated the abortion can be undertaken with the understanding that it involves risks, allowed the abortion and directed the board to carry out the necessary procedures.
The mother of a 19-year-old girl suffering from mild to moderate mental retardation had approached the High Court of Himachal Pradesh in October 2017 for permission to terminate the girl’s 32-week pregnancy. The medical board constituted by the High Court observed that if the pregnancy were continued, the foetus would suffer severe cognitive and motor impairments even after surgery. The Court therefore granted permission for the termination of the pregnancy.
In September 2017, the mother of a 13-year old rape survivor moved the apex court for permission to terminate her 32-week pregnancy. The Supreme Court permitted the abortion citing that it was a result of sexual abuse and the victim did not want to carry on with it, despite opposition from the Centre that argued that the pregnancy was too advanced.
In September 2017, a woman in her 31st week of pregnancy sought permission to terminate her pregnancy as both kidneys of the foetus were found to be not functioning. Noting that the continuation of pregnancy will cause more mental anguish to her, the Supreme Court granted her permission.
A 17-year rape victim approached the Karnataka High Court in September 2017 seeking permission to terminate her pregnancy that had exceeded 20 weeks, arguing that she will suffer mentally if she had to deliver her baby at such a young age. The Court, however, rejected the plea following the report of the medical board that suggested that termination of the pregnancy would not be good for the girl and the foetus.
In August 2017, a 20-year-old woman from Pune approached the Supreme Court, seeking permission to abort her 24-week foetus that was diagnosed as having no skull. After the medical board reported that there was no treatment possible for the condition, the Supreme Court granted permission for the termination of the pregnancy.
A 10-year-old girl in Chandigarh was found to be 26-weeks pregnant by local doctors, after which the District Court was approached to allow her to undergo an abortion. The girl, who was raped several times by her maternal uncle, was denied permission by the court in July 2017 to undergo abortion,^[52] after it was later revealed in another examination that the foetus was 32-weeks old.^[53]
In July 2017, the 24-week foetus of a 21-year-old woman from Mumbai was diagnosed with mental abnormalities. Following this, renowned gynaecologist Dr. Nikhil Datar helped the husband of the woman file a petition in the Supreme Court, to allow her to undergo an abortion. The Supreme Court granted the permission.
In July 2017, a 19-year old rape survivor approached the Gujarat High Court seeking permission to terminate her 26-week pregnancy. While the girl pled that she was “totally innocent and will have to face punishment for her entire life for the crime committed by someone else”, the plea was rejected by the High Court which argued that “the risk from abortion was higher than delivery at term”.
In June 2017, a Kolkata-based woman filed a petition in the Supreme Court, challenging Section 3 of the MTP Act which denies permission to abort the foetus beyond 20 weeks of pregnancy. The woman discovered that her foetus had congenital defect when she was 23 weeks pregnant, and had crossed the 20-week benchmark within which it is legal to terminate a pregnancy. The Supreme Court in response, appointed a medical board of seven senior doctors in Kolkata, directed it to examine her. The apex court has called for a need to amend the MTP Act, to make it more “meaningful”.
In May 2017, a medical board of eight doctors referred the case of a 10-year old pregnant girl who was raped by her stepfather, to the city court in Haryana. The board was unsure of the gestation, and concluded that it could be between 18–22 weeks. The city court advised the board to choose one of two ways – either to go ahead with the abortion by considering it to be below 18 weeks, or “wait for the pregnancy to complete its full term if they feel the unborn child has surpassed the age cap”. Following this, the board decided to go ahead with the abortion.
In May 2017, a 16-year old rape survivor and her father approached the Gujarat High Court seeking permission to abort her foetus that had grown beyond 20 weeks. The Court allowed the teen to undergo abortion, citing that the abortion was not likely to endanger the life of the girl based on the medical opinion of a doctor.
In May 2017, an HIV-positive destitute rape victim approached the Patna High Court with a plea to terminate her pregnancy. After the High Court turned down the plea, saying that “it was a compelling responsibility of the state to keep the child alive”, the Supreme Court was approached. The apex court then granted permission to abort the now 26-week old foetus, directing an AIIMS medical board to examine her. It stated that “a woman, who has already become a destitute, being sexually assaulted and suffering from a serious ailment, should not go through further suffering. The quintessential purpose of life is the dignity of life and all efforts are to be made to sustain it.”
In April 2017, the mother of a 16-year old rape victim in Madhya Pradesh approached the Indore bench of the High Court seeking permission for the termination of her daughter’s 33-week pregnancy. The plea was rejected by the bench, arguing that the “foetus was grown and an abortion was unjustified”.
In March 2017, a 28-year-old woman from Mumbai approached the Supreme Court to seek permission to terminate her 27-week pregnancy after discovering that the foetus was suffering from Arnold Chiari Type II syndrome – a condition similar to the one she saw her brother grow up with. The Supreme Court denied her permission for an abortion, ruling that there are chances the baby may be born alive.
In February 2017, a 37-year-old woman in her 27th week of pregnancy approached the Supreme Court for permission to abort her foetus that was found to be suffering from Down Syndrome. After the medical board appointed by the Court advised against an abortion, the apex court denied her permission to terminate the pregnancy, citing that the baby could be “born alive” if the pregnancy was allowed to continue, while admitting that it was “very sad for a mother to bring up a mentally retarded child”. The foetus was detected with a rare abnormality called the Arnold-Chiari malformation, where the brain and spinal cord connect.
In January 2017, a 22-year-old woman sought permission from the Supreme Court to abort her 24-week foetus on medical grounds. Further to the medical board’s report which revealed that the foetus was without scalp with bleak chances of survival, posing a threat to the life of the woman, the apex court granted her permission to undergo abortion.
In July 2016, a 26-year old rape victim approached the Supreme Court seeking permission to terminate her 24-week pregnancy, as the foetus was detected with Anencephaly, a condition whereby most part of the brain, scull and scalp is missing. The medical board, after having examined her on the directions of the Supreme Court, declared that the woman’s life was in danger. The apex court then granted her permission to abort the foetus.
In February 2016, an 18-year old rape victim sought permission from the Gujarat High Court to abort her 24-week foetus after having unsuccessfully attempted suicide by consuming acid. The panel of doctors submitted their report, following which, the High Court granted permission, citing that the continuation of the pregnancy “may result in a grave injury to her mental health”.
In the Samar Ghosh v. Jaya Ghosh case of March 2011, the Supreme Court examined whether a woman’s decision to terminate a pregnancy without her husband’s knowledge or consent would amount to mental cruelty. The Court in this case ruled that “if the wife undergoes vasectomy (sic) or abortion without medical reason or without the consent or knowledge of her husband, such as act may lead to mental cruelty”.
In November 2011, in the Dr. Mangla Dogra & Others v. Anil Kumar Malhotra & Others case dealing with the issue of whether a husband has a right to provide consent for abortion, the High Court of Punjab and Haryana stated that “the MTP Act requires consent from just one person: the woman undergoing a medical termination of pregnancy. A husband cannot force his wife to continue a pregnancy”.
In September 2009, in the Krupa Prolifers v. State of Kerala case, the Kerala High Court, while addressing the issue of regulating emergency contraception under the MTP Act, ruled that “emergency contraception does not cause termination of pregnancy and cannot be regulated by the MTP Act”.
In August 2009, the Supreme Court addressed the Suchitra Srivastava & Another v. Chandigarh Administration case on the issue of whether the state can consent to a termination as a guardian for a “mentally ill” woman who was raped in her state-run facility. The Court ruled that the facts must be examined in such a case, and where the woman is “not a minor and has a “mild” mental illness, the Court has to ensure her reproductive rights, including the right to continue a pregnancy”.
In July 2008, a woman approached the Bombay High Court seeking permission to abort her 26-week old foetus that was diagnosed with congenital heart defect. The High Court turned down the plea, arguing that “if born, the foetus would not suffer from any serious handicap”.