As people on the inside, we have heard, too often to ignore, doctors bemoan abortions — having to perform them, counselling women who approach them, the very concept of it. Not all, but enough of us would say, “They’re basically making us commit murder,” in a dozen different ways, each more or less as unempathetic.
The image seared into memory from medical school is of a woman in tears, undergoing a surgical procedure with minimal sedation to undergo an abortion at 14 weeks, as the service provider, a consultant, kept muttering under her breath, ‘making me a culprit in her crime, and now she has tears? ‘ These statements, it seems, grow stronger, and more vitriolic, the later the abortion is scheduled. It seems that the more advanced the gestation is, the stronger are these ethical pangs that healthcare providers feel.
In the debate over abortion rights, few concepts are as legally and ethically contentious as foetal viability — the point at which a fetus can survive outside the womb. The problem is that there is no single, definitive moment when viability occurs. Though several different definitions of foetal viability have existed over time and across cultures, it is safe to say that the foetus’ right to life grows stronger as the period of the pregnancy progresses. However, this vagueness of viability lends itself to legal and ethical arguments surrounding abortions across the world.
India can consider itself somewhat lucky. In the same year that the U.S. Supreme Court overturned Roe v Wade and set abortion rights back by half a century, the Indian apex court delivered a momentous judgment. It noted that single “unmarried” women, who often struggle to access abortion care within the health system, are naturally granted reproductive choice as part of their personal liberty. These rulings are generally praised for giving women bodily autonomy for abortions – amended from 20 weeks up to 24 weeks in 2021.
Medicolegal barriers
What happens after 24 weeks? That’s where the question of foetal viability enters, and the ethical argument surrounding abortions heat up. The most recent amendment to The Medical Termination of Pregnancy Act, 1971 (MTP Act) allows abortions to be conducted by one registered medical practitioner (RMP) until 20 weeks, and two RMPs up to 24 weeks of pregnancy. From 24 to 30 weeks of pregnancy, all abortions must be reviewed by a medical board.
Medical boards that rule upon these abortions are governed by strict laws. They can only approve cases where the foetus has abnormalities that are incompatible with life, or if continuing the pregnancy would significantly harm the pregnant person’s health. “Even if a foetus has some serious illness but can be medically managed with available facilities, even if the life expectancy is limited in a foetus with thalassemia, we do not recommend (an abortion),” says Jyoti Bunglowalla, an obstetrician practicing in Indore. This reflects the general medical doctrine, where the sanctity of life outweighs the quality of life.
“Late-term abortions are mostly in cases of assault, especially cases of minors, where the victim doesn’t really come out about the pregnancy until it is at an advanced stage,” says Dr. Bunglowalla. “We have to remember that these are not common cases. We have great legislations protecting both women and doctors for abortions upto 20 weeks.”
The decision-making process for these abortions is on a case-by-case basis, and guided by the members of the Medical Board — doctors specialised in gynaecology, paediatrics, anaesthesiology and other specialties, among other notified government officers. Their decisions can be appealed in a court of law, and here, the subjectivity of law deepens even more.
Stopping the heart beat
In 2023, a 27-year-old mother of two did not discover her pregnancy until almost 25 weeks. This was due to lactational amenorrhea, a condition where breastfeeding mothers do not resume their menstrual cycles. Her previous pregnancy a year back, had led her to develop postpartum depression and psychosis, which was being managed on medication. With a breastfeeding infant and a serious mental health condition, she sought an MTP, and as per law, a medical board was set up. While the MTP was initially allowed, a member of the medical board emailed the court. At this late stage, they stated, they would either have to deliver a preterm baby who would need intensive care, or would have to stop the heartbeat to complete the abortion. This email was sent five days after the MTP had been allowed, and the petitioner was now 26 weeks pregnant.
Despite the fact that “stopping the heartbeat” is a routine procedure in late-term abortions for fetuses with congenital anomalies, this case was dependent on morality. The woman was asked if she would want to “stop the heartbeat”, without considering the moral and emotional burden it placed on her outside the medicolegal context. No, she said, but she was resolute in not wanting the child either. The court ruled for her to continue the pregnancy.
Others have been denied late-term abortions since then. The law accedes to women their reproductive choice, but it may also favour the unborn child’s right to live — as long as they do not show any obvious congenital anomalies. This, despite the fact that most of these judgments explicitly state that the foetus would almost certainly suffer physical or mental harm if the pregnancy were to be terminated at that point.
”While it is possible to resuscitate and manage a 24 weeker in a state-of-the art private facility, it is rare,” says Shruti Kashyap, a paediatrician. “When you think of Indian set-ups, with the scarcity of infrastructure and resources, with best possible efforts, maybe a 26 week (foetus) can be managed, given the best possible care.” The 24-week limit is based on the theoretical concept of viability, rather than an absolute. So what happens as medical advancements allow us to resuscitate foetuses at an even earlier period? Will abortion rights be based on neonatal medicine developments?
A question of ethics
Philosophically speaking, one could argue for or against the rights of the foetus, depending on one’s own beliefs. Ethics in medicine are led by the premise of primum non nocere- “first, do no harm”. This, arguably, should prioritise the rightsof the pregnant person, and the harm that she may incur. “Now the problem (beyond 24 weeks) is that even if one terminates the pregnancy, they’ll have a premature delivery. The news makes it sound like doctors are denying abortions. At that point we have to consider both the foetus and the mother’s life. Even the case of the 14-year-old (who approached the court) at 30 weeks — her abortion was not carried out because there was a high risk to her life if the abortion is carried out at that stage. If there is any risk, how can one conscientiously agree (to provide an abortion)?”
However, cases like the 2023 judgement show that the courts can, and do, prioritise foetal life over the mother’s mental and physical health. Late term abortions are not requested commonly– and this case may have set a precedent, showing that women can be compelled to carry pregnancies, even if they vouch that the pregnancy is unwanted and dangerous to their well-being.
Studies have consistently shown that most women do not believe that abortion is a method of family planning, and a majority believe it is a sin. Given this context, it can be surmised that abortion is often a last measure, not a first choice. Why, then, does the general opinion among providers seem to paint all women as ignorant beneficiaries?
Exception to the law
One must remember that the MTP Act doesn’t provide abortions on request. It is an exception to the law against abortions, to protect providers from the Indian Penal Code (now Bharatiya Nyaya Sanhita), but only in very specific cases. This means that doctors often seek to protect themselves from civil and criminal lawsuits. “When providers attend to an unmarried person seeking an MTP, they ask for consent — but this is usually because they want to protect themselves against lawsuits, in case any complications arise,” says Sita Srinivasan, a gynaecologist practicing in Assam.
This fear is not unfounded — anecdotes of legal action against providers do exist, making doctors hesitant to provide abortions. A government hospital in Mumbai files “emergency police reports” in cases when unmarried women undergo abortions, just in case a sexual assault case is filed later. “Doctors are also afraid of performing an abortion for a woman with two daughters, because of the implication of sex-selective abortions and the legal consequences of it,” she adds.
“Usually, negative counselling is done when a woman first seeks termination,” says Dr. Srinivasan. “Doctors can be disrespectful— Kyun chahiye? Kya zarurat hai” (Why do you need an abortion?) This is also the result of overworked, underpaid doctors working round the clock.” It does feel like the system is rigged, and seeking an abortion can be daunting.
What can be done to improve the situation? “Doctors are more liberal now, and are not as judgmental as they were 20 years ago,” says Dr.Bunglowala. “Access to MTP pills can be made easier, with removal of administrative barriers- and improved sex education can be mandated. Instead of imposing preconditions of sterilisation, abortion needs to be viewed as a health care service. Maybe these things, slowly but surely, will improve abortion access over time.”
Meanwhile, one can only hope that the cases that show up in hospitals as late-term abortions and in court as writ petitions are treated with empathy, because we have no clear answers yet.
(Radhikaa Sharma is a public health physician in Delhi, and an associate editor for Nivarana. radhikaasharma176@gmail.com)
Published – March 28, 2025 06:00 am IST