In the battleground of modern ethics and jurisprudence, the clash between a woman’s autonomy and the sanctity of life roars to the fore in the case of X v. Union of India before the Supreme Court of India. As, a married woman and mother of two grapples with a monumental decision—a potential termination of her pregnancy at nearly 26 weeks due to the complexities of lactational amenorrhea and the weight of depression.

Initially, the Supreme Court granted permission for termination at 26 weeks based on an AIIMS report. However, a pivotal truth emerged: “the baby is viable and has a reasonable chance of survival.” The Union of India sought a recall, acknowledging that the sanctity of life, especially when viable, supersedes the intricacies of choice.

The Chief Justice of India, recognizing the delicate balance between a woman’s autonomy and the rights of the unborn child, issued a decisive order to pause the abortion process. This statement encapsulated the profound ethical struggle at the heart of the matter. It is in this scenario, Dr K. Aparna Sharma from the All-India Institute of Medical Sciences emphasized the harsh reality that not performing feticide could lead to a preterm delivery, demanding intensive care for potential physical and mental disabilities of the infant, placing an overwhelming burden on the parents.

As the story unfolds, the division bench presented conflicting views. Justice Kohli, placing reliance on Dr Sharma’s perspective, refrained from permitting abortion upon observing the born-alive foetus. In contrast, Justice Nagarathna empathized with the mother’s conditions and advocated for abortion, underlining the foetus’s dependence on the mother. Finally, the Chief Justice of India, on Monday, rejected the plea to terminate the pregnancy at 26 weeks, considering the foetus’s viability to survive.

In this precipitous juncture, where judges opining variedly, a challenge emerges—an invitation to transcend the dichotomy of pro-life and pro-choice. It persuades us to navigate this delicate balance, acknowledging the rights of both the unborn and the mother. Even, the legal history reveals instances where the Supreme Court of India leaned significantly towards upholding women’s rights, even delving into the possibility of permitting abortions beyond the stipulated gestation limit of 24 weeks.

Thus, raises a fundamental question: what should be the fate of the baby born under such circumstances? Amidst this discourse, the enigma surrounding the rights of a born-alive foetus comes to the forefront—questions concerning the child’s ownership after an abortion, the appointment of a guardian for this nascent life, and the inherent rights bestowed upon such a child. Does the born-alive foetus possess an inalienable right to live, to receive medical care, and to be nurtured? Who shall shoulder the burden of the substantial medical expenses that arise from treating a premature baby born under such circumstances?

Considering the discussions surrounding the importance of recognizing and protecting born-alive infants resulting from abortion, it is crucial to refer to the 2019 judgment in XYZ v. Union of India; Writ Petition No. 10835/2018 by the Bombay High Court, which highlighted the necessity of providing essential medical support and facilities for these infants. The court urged the State government to formulate a suitable policy to ensure their welfare, emphasizing the critical need for a comprehensive policy addressing the welfare of “abortion survivors.”

Contrasting this, on January 11, 2023, the United States passed the Born-Alive Abortion Survivors Protection Act, underscoring the need to prevent harm or murder of infants born alive after an abortion. This legislation recognizes the born-alive infant as a legal person and places increased liability on medical practitioners to ensure their protection and care. The act also imposes penalties for intentional killing of a born-alive infant.

Likewise, in Australia, the Human Rights (Children Born Alive Protection) Bill 2022 aims to mandate lifesaving treatment for abortion survivors and appropriate palliative care for those unable to survive with medical assistance. This bill seeks to align with the United Nations Convention on the Rights of the Child, emphasizing every child’s inherent right to life and survival.

In examining the legal landscape and proposed initiatives, it’s essential to underscore significant data provided by the Centres for Disease Control and Prevention (CDC) in the United States. The CDC’s analysis of death certificates from 2003 to 2014 in US uncovered a deeply troubling trend: at least 143 infants were born alive after an abortion during this period but tragically did not survive. This distressing revelation emphasizes the urgent need for legislation such as the Born-Alive Abortion Survivors Protection Act.

Moreover, delving into the Australian context, specific data highlights the severity of the situation. From 2010 to 2020 in Victoria, 396 newborns lost their lives with abortion listed as the cause. Likewise, in Queensland, the cause of death for 328 newborns during the same period was attributed to abortion. Additionally, in Western Australia between 1998 and 2017, there were 27 confirmed instances of abortion survivors left to fend for themselves, painting a grim picture. This grim reality underscores the immediate necessity for Human Rights (Children Born Alive Protection) Bill 2022 in Australia.

In light of these legal advancements and the increasing instances of abortions surpassing the gestational limit, India must consider analogous legislation or constitutional recognition. A proactive strategy is essential to safeguard the rights and well-being of infants born alive and address the associated challenges, including ensuring doctor accountability, reducing feticide, and maintaining comprehensive data as to the status of foetus as a result of abortion.

In considering a similar law in India, it is essential to strike a balance between pro-choice and pro-life perspectives. The time has come to adopt moral reformism in caring for the born-alive, ensuring their right to life and providing the necessary support and protection. The scales of justice should balance pro-choice with pro-life equally, for the fate of the foetus is at stake, vulnerable to the shadows of foeticide.

The author is an Advocate at the Supreme Court of India. The Column is co-authored by Chakshu Purohit who is also an Advocate at the Supreme Court of India.

[The opinions expressed in this article are those of the authors. Verdictum does not assume any responsibility or liability for the contents of the article.]