Guest Post: The phantasm of ‘feticide’ – On the Delhi High Court’s abortion order in R v. Union of India

[This is a guest post by Muskan Tibrewala.]

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On 22^nd December 2023, a young, recently widowed, pregnant woman, R petitioned the Delhi High Court for termination of pregnancy at 26 weeks. The Petitioner sought termination because she was facing extreme mental trauma due to the demise of her husband a mere two months prior.

In its psychiatric evaluation, AIIMS found that the Petitioner was facing severe depression, and suicide ideation. They also admitted the Petitioner in the psychiatry ward in light of the risk to the her life and that of the foetus. On 4^th January 2024, the Delhi High Court allowed the termination of pregnancy on the ground that “to continue with the pregnancy can impair the mental stability of the Petitioner as she is showing suicidal tendencies.”

This writ petition was disposed of and in regular course, this would be the end of the case. However, the aftermath of this order, recorded in the court’s judgement dated 23^rd January 2024, follows a discernible trend in the court’s adjudication of abortion cases, which started from the highest court and has predictably trickled down to other courts. Notably, the state’s vehement opposition to pro-choice orders of the courts, and attempts to advance a ‘right of the foetus’ jurisprudence, which does not have judicial precedent or basis in law in India, is central to this downtrend.

The phantasm of ‘feticide’

After the order allowing termination, AIIMS refused to conduct the termination without a clarification from the court on the status of the foetus. The Petitioner filed an application before the Delhi High Court seeking directions to AIIMS to conduct the termination of pregnancy. AIIMS submitted a report stating that since the foetus was normal, the “[f]eticide in this case is neither justified nor ethical.”

The Petitioner in her application sought that the termination be done in accordance with Ministry of Health and Family Welfare Government of India (MoHFW) Guidelines on 14.08.2017 and 6.08.2018 which contains a “Guidance Note for Medical Boards for Termination of Pregnancy Beyond 20 Weeks of Gestation”. This clearly states that “stopping the foetal heartbeat” is the medical procedure in cases beyond 24 weeks of gestation. The Guidelines prescribe the procedure for cases that are exceptions under Section 5 of the Medical Termination of Pregnancy Act (MTP Act), 1971 where termination is allowed beyond the gestational limit under the law.

The termination of pregnancy inevitably involves feticide i.e. the abortion of a foetus. The MoHFW Guidelines only reinforce that medical method of termination of pregnancy requires feticide. Although the MTP Act, 1971 does not define ‘foetus’, the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 defines a foetus as a human organism in its period of development from 8 weeks to birth. Under the law also therefore, any termination of pregnancy post 8 weeks is feticide.

This is important because the state respondents and the medical board have created an artificial distinction between feticide and termination of pregnancy. Feticide here is not understood in its conventional sense (where all termination is feticide) but as terminating a viable and healthy foetus. By creating this phantasm of ‘feticide’, termination of pregnancy can only be understood as the diametric opposite of a viable and healthy foetus i.e. terminating a foetus with abnormalities. This does two things, (1) it narrows the conditions under which pregnant persons can seek termination to cases with foetal abnormalities and; (2) it allows the rights of the foetus to creep into Indian jurisprudence. This is reflected in the medical report relied on by the state respondents and the court which states that termination of pregnancies beyond 24 weeks is for fetuses with abnormalities and that feticide in this case is neither justified nor ethical. This artificial distinction has no basis in law or precedent.

This narrow interpretation is also prevalent in the Delhi High Court’s examination of the guidelines. Although the guidelines clearly state that they provide the procedure for all terminations allowed by the courts beyond 20 weeks (possible grounds for such termination being rape and foetal abnormalities) then Delhi High Court holds that without foetal abnormalities, the guidelines cannot be pressed to allow feticide. This narrow reading of the guidelines creates a legislative vacuum for the procedure in cases that are not foetal abnormalities but allowed by the law under Section 5, or by courts under writ jurisdiction. 

The same distinction was used in X v. Union of India 2023 SCC OnLine SC 1338 where a three-judge bench of the Supreme Court, in similar facts, held that the medical termination could not be conducted because the doctors will have to terminate a viable foetus. This case had been referred to the three judge bench after a special divison bench of Hon’ble Justice Hima Kohli and Hon’ble Justice Nagarathna adjudicated on the matter and gave a split verdict. In this split verdict, Hon’ble Justice Nagarathna observed that such clarification from the Court on medical procedures sought by AIIMS was unfounded after the court had ordered termination, and AIIMS only had to act on the orders. This directly contradicts the Delhi High Court’s finding in the same situation that AIIMS was correct to approach the court for clarification because there were no foetal abnormalities.

In the absence of foetal abnormalities, the court effectively denied termination due to concerns around the rights of the foetus. This has no basis in Indian jurisprudence; as argued before on this blog, several cases of the Supreme Court and the High Courts have allowed termination when the foetus is healthy and viable. Hon’ble Justice Nagarathna in X v. Union of India 2023 SCC OnLine SC 1336 observed that “a foetus is dependent on the mother and cannot be recognized as an individual personality from that of the mother as its very existence is owed to the mother.” She went on to hold that recognizing that the foetus has a separate identity from the pregnant person due to which the pregnant person must carry a pregnancy term despite injury to their mental and physical health would be violative of their rights under Article 21 and 15(3) of the Constitution of India. 

Recall in whose interest of justice?

After the Petitioner filed her application for directions, the Respondent filed an application to recall the order which allowed the termination of pregnancy. Recall of an order is allowed under Section 151 of the Civil Procedure Code, 1908 in exercise of the court’s inherent powers in the interests of justice. Over the years, the courts have articulated the grounds which satisfy this requirement, such as fraud, patent illegality or gross miscarriage of justice. The ground for the recall application was that pregnancy should not be terminated because the foetus is “normal.” This was despite the fact that this issue was before the court even when it allowed the termination of pregnancy.

Notably, foetal health was not a consideration when the Delhi High Court allowed termination on 4^th January, only the Petitioner’s mental health was. Yet, when AIIMS denied termination for want of specific directions for ‘feticide’ and the state respondent filed an application stating concerns of the foetus being “normal” (the same modus operandi as in X v. Union of India), the court’s concerns changed. The Petitioner who, initially, was so mentally ill that she was a risk to herself and the foetus, now was found to have no grave injury to mental health if she continued the pregnancy. This finding was contrary to the court’s own finding of mental instability of the Petitioner in its 4th January order. The MoHFW Guidelines that cover all exceptional situations under Section 5 were, according to the court, only limited to foetal abnormalities. Further, although the Petitioner sought termination under Section 3(2)(b)(i) read with 3(3) and Section 5 of the MTP Act, 1971, the court did not examine Section 5(1).

Denying “Life” under Section 5(1)

Section 5(1) of the MTP Act, 1971 allows termination beyond the gestational limit of 24 weeks if it is “immediately necessary to save the life of the pregnant woman”. This case falls squarely under Section 5(1) because AIIMS stated that there was “risk to self and other (foetus)” in its psychiatric evaluation. However, as the court was approached under writ jurisdiction, in its 4th January order directing the termination, it located the legality of the abortion under the right to reproductive autonomy, and judicial precedent. Although the extraordinary powers under writ jurisdiction allow courts to uphold rights and give remedies beyond the lay of the law, it often stunts the interpretation and evolution of law. In this case, perhaps if the court found that the termination was allowed by the law under Section 5(1), the order could not have so easily been recalled.

Admittedly, this is not always the case and even under writ jurisdiction courts often locate the rights within in statutory law. With respect to Section 5(1), the Bombay High Court in X v. Union of India 2019 SCC OnLine Bom 560 observed that the Supreme Court has in several cases adopted a purposive and liberal interpretation of Section 5 and allowed termination beyond the highest gestational limit where there was grave injury to the mental health of the pregnant person. The Court sought to answer the question of how ‘life’ in Section 5 should be interpreted: as “antithesis to death or physical survival or mere animal existence”? The Court found that the Supreme Court has, in effect, read the contingencies referred to under Section 3(2)(b) into the provisions of Section 5 of the MTP Act, 1971 and allowed termination in cases where there was no ‘immediate’ danger to the life of the pregnant person.

The Bombay High Court concluded that only a liberal and purposive interpretation of Section 5 will be in consonance with the object of the MTP Act, 1971 and rights protected under Article 21 of the Constitution of India. The Court held that ‘life’ under Section 5 “include[s] the right to live with dignity and not to merely survive with indignity, not to mention the lifelong physical and mental trauma which such episodes invariably generate.”

In August 2023, in XYZ v. State of Gujarat 2023 SCC OnLine SC 1573, the Supreme Court allowed termination of a pregnancy at 27 weeks where there were no abnormalities in the foetus and the pregnant person was healthy enough to carry the pregnancy to term. The termination was allowed because the pregnant person was a rape victim, which the court recognized caused physical and mental trauma. However recently, the Kerela High Court in XXX v. State of Kerela 2023 SCC OnLine Ker 10457 denied even a rape victim termination because the foetus did not have any abnormalities. Even if the Delhi High Court did not believe that that this case came under the exception to save the pregnant person from ‘immediate’ danger under Section 5(1), a purposive interpretation should still have allowed for termination under the MTP Act, 1971. 

Conclusion

The courts have allowed termination of pregnancy beyond 24 weeks even when there are no foetal abnormalities on concerns of mental health of the pregnant person, just as the Delhi High Court and Supreme Court did before the state respondents and medical board brought up artificial concerns about ‘feticide.’ Before the introduction of the phantasm of ‘feticide’ dilutes the provisions under the MTP Act, 1971, it is imperative that subsequent judicial adjudication of abortion steers clear of such attempts to bring in “rights of the foetus” jurisprudence in India, and advances a liberal and purposive interpretation of the allowances under the MTP Act, 1971, particularly section 5, to uphold the reproductive rights of pregnant persons.

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The author would like to thank Prannv Dhawan for his inputs.