The Case of the Ill-Fated Abandoned Neonate - Dr Pratibha Kane

There is a recent surge of court rulings to terminate pregnancy in rape victims beyond 20 weeks to preserve their bodily autonomy and dignity. The courts have failed to understand that after 20 weeks the termination of pregnancy is not MTP but an induced premature labor. When courts adjudicate late-term termination petitions under Section 3(2B) or Article 226/32, the primary objective of the petitioner is the termination of pregnancy, but the biological reality past 22–24 weeks involves fetal viability.

There is a Constitutional ambiguity about the rights of the unborn child and the rights of a neonate showing all signs of life but can only survive if given specialized ICU care.

No genuine concern is shown for these unfortunate, severely premature newborns who are abandoned for no fault of their own. The court ordered prematurely delivered neonates suffer serious physical and mental harm. Many are left to die without any further intervention due to poor resources. If capable of surviving independently they may be sold.

If lucky, the prematurely born may reach a high dependency PICU where it must undergo life-sustaining treatment like ventilation with uncertain prognoses. In a country like India with already strained resources and dilemmas of futile care, do these newborns have a fair chance of a normal life? Where is the provision for protecting the right of a viable fetus born alive but abandoned after a court ordered MTP?

Ethical dilemma for doctors: In a polarized medicolegal landscape, these court orders stresses clinician’s moral character as the obstetrician has to conduct the premature delivery with all its risks and the pediatrician has to receive this innocent neonate who is struggling to survive the harsh future in a PICU where survival of even precious babies is bleak.

The “Live Birth" liability: Under Indian criminal and civil law, once a fetus is delivered and shows independent signs of life (breathing, heartbeat, umbilical pulsation), it is recognized as a living child. If a baby is born alive during an MTP without prior feticide, withholding neonatal care or actively ending its life exposes clinicians to charges of medical negligence or culpable homicide under the Bharatiya Nyaya Sanhita (BNS).

Parliamentary Inconsistency and Judicial hesitation

The guidelines in MTP Act 2017 the option of feticide was clearly mentioned, to be used if the fetus is viable so as to prevent accidental live birth.Th e medical procedure was also clearly described. This provision was not included in the amended MTP 2021 Act without any reason stated for the omission in the statute. By leaving "feticide" unmentioned, the legislature has avoided explicitly legalizing an act that technically intersects with penal prohibitions on causing direct intra-uterine death.

The Ministry of Health and Family Welfare (MoHFW) issued training and service delivery guidelines (2017/2018) that recommend stopping the fetal heartbeat (feticide using intra-cardiac Potassium Chloride) before late-term labor induction. But how will doctors be able to execute this option if the judiciary

does not support it? A doctor cannot be expected to run the risk of imprisonment to evade safeguards which Parliament deliberately have not put in place. The dilemma of the judiciary was highlighted in the split in the Supreme Court bench of 2 women judges over allowing medical termination of a 26 weeks pregnancy. Justice Kohli dictated that her judicial conscience did not permit her to allow the termination of the pregnancy of the petitioner, while Justice Nagarathna asserted that the petitioner was unequivocal in her submission that she did not wish to carry the pregnancy and thus her decision should be respected. The matter was referred to the three judge bench of Hon’ble Chief Justice, Justice J B Pardiwala

and Justice Manoj Mishra, who on 16th October 2023 said, “we do not accede to the prayer for the medical termination of the pregnancy.” This means that prescription of feticide for unwanted viable fetuses more than 20/24 weeks is unacceptable to courts, legislature and society. Then there must be a road map of provisions and resources to protect the survival rights of these newborns which seem to be conveniently neglected.

Process is the punishment:

Ideally all efforts must be made to detect pregnancy before the fetus is viable in rape victims. These victims can easily be protected from advanced pregnancy by mandatory weekly pregnancy tests and a monthly USG examination to proactively avoid advanced pregnancy which needs engaging lawyers and seeking courts to terminate. The cost and delay in decisions are both detrimental to the victim’s life, perpetuates trauma .

and prevents early closure for the unfortunate victims.

Feticide advocacy:

Feticide is a dignified and humane option for an unwanted child in a resource limited country like India where even a premature neonate from affluent families also have a poor chance of survival.

The Royal College of Obstetricians and Gynecologists (RCOG) (United Kingdom) guidelines has feticide option incorporated in the treatment plan of rape

survivors with pregnancies more than 21 weeks to prevent live birth and resuscitation dilemmas.

World Health Organization (WHO) Safe Abortion Guidance recommends that feticide should be considered prior to medical or surgical abortion beyond the point of viability (typically ≥ 20 − 22 weeks) to ensure that live births do not occur following labor induction, avoiding ethical, legal, and clinical conflicts regarding neonatal resuscitation.

We need to increase awareness, training and enable specialized government run centers for managing rape survivors who are likely to deliver a viable premature newborn. Preventing accidental live births in these pregnancies will bring early closure and regain dignity to the victim, without the guilt of abandoning a neonate.

Legal feticide option is the bitter pill which must be prescribed urgently and policy makers take moral responsibility for this increasing social injustice towards rape survivors.

Reference links:

https://journals.sagepub.com/doi/10.1177/09710973251406684 https://onlinelibrary.wiley.com/doi/full/10.1002/ccr3.70433

https://pmc.ncbi.nlm.nih.gov/articles/PMC9903864/

https://government.economictimes.indiatimes.com/news/governance/amend law-on-pregnancy-termination-of-rape-survivors

sc/130673045?utm_source=copy&utm_medium=pshare

https://timesofindia.indiatimes.com/city/mumbai/paradox-of-live-birth-after mtp-med-boards-slipping-up-by-not-including-foetal

experts/articleshow/102688252.cms

https://timesofindia.indiatimes.com/india/pregnancy-termination-pro-life-or pro-choice-split-in-supreme-court-bench-of-2-women

judges/articleshow/104352049.cms

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