A recent Supreme Court of India ruling permitting medical termination of pregnancy at 28 weeks has drawn considerable media coverage. Much of the focus has centered on arguments from the All India Institute of Medical Sciences seeking reconsideration of the decision.
Doctors at the institute contended that the procedure described by the court would result in delivering a living infant at 28 weeks, likely facing serious health complications, long-term conditions and disabilities. They proposed delaying delivery by six weeks to enhance survival prospects. The court rejected these points firmly.
The doctors’ position echoes broader claims regarding a foetus’s interest in reaching full term, as additional time in the womb improves survival odds outside it. At 28 weeks, however, two key shifts occur. Physicians can more accurately forecast survival chances and potential complications, rendering concerns over neonatal care and future health more specific. Additionally, the ethical responsibility on the doctor performing the delivery grows substantially. When a foetus is non-viable, the physician’s duty lies solely with the pregnant woman. Once a living child may be delivered, obligations extend to the newborn as well. A doctor might thus view the procedure not only as termination but as a premature delivery requiring immediate efforts to sustain life. Although the court order shields the physician from legal repercussions, it leaves ethical and moral duties intact.
The court’s decision does not lose force from these concerns. Presented with an unwed minor who had reportedly attempted suicide twice, the court reasonably emphasized her reproductive autonomy and welfare. Yet the doctors’ objections, while centered on the unborn child, also highlight a significant unease: the ethical weight on medical staff required to conduct such procedures near the limit of foetal viability. This weight need not alter views on the case outcome but merits recognition for the tensions it reveals.
These tensions stem from a deeper structural problem. The severe distress faced by the minor, the situation of the viable foetus and the doctors’ ethical load all point to the state’s inadequate response to adolescent sexual activity. Here, a largely consensual relationship between a 15-year-old girl and her 17-year-old partner led to pregnancy that remained undetected until advanced, necessitating court involvement because the Medical Termination of Pregnancy Act, amended in 2021, bars terminations after 24 weeks even in exceptional cases.
India’s approach has relied mainly on broad criminalisation, treating all sexual activity involving minors as offences irrespective of consent or exploitation. Research from the United States indicates abstinence-only programmes do not stop adolescents from engaging in sex. Indian studies on the Protection of Children from Sexual Offences Act, 2012, show that 10-15 percent of cases in special courts involve de-facto consensual relationships, with little evidence the law deters such activity.
This criminalisation combines with insufficient comprehensive sex education in schools. Restrictions such as the ban on condom advertisements between 6 a.m. and 10 p.m., alongside a generally restrictive environment around sexuality, sideline open discussion. Rather than instructing adolescents on safe sex, menstruation, sexually transmitted infections and pregnancy, responses reduce to a simple directive against activity. Preventing similar cases would more likely require thorough sex education and focus on safe practices.
Such policies call for a more nuanced discussion of adolescent sexuality.
