Beyond life vs choice: The legal gaps for born-alive children of abortions

But the reality of such situations extends beyond the Court’s welcome recognition. Our discourse on reproductive rights, human rights, and balanced justice revolves around the dichotomy of choice versus life, paying scant attention to the aftermath of the abortion procedure, especially in cases where a late termination might result in a born-alive child. This is a conversation that is often neglected but demands our urgent attention.

The absence of guidelines for such scenarios is not merely a legal oversight — it is a glaring absence that leaves many questions unanswered. These questions resonate with the concerns raised by the Gujarat High Court in a similar case, emphasising the urgent need for clarity and decisive action. The HC inquired: What provisions exist to care for a child born under such circumstances? Are there government schemes in place to support these children? And, crucially, who will assume responsibility for their care and upbringing?

Does our constitutional morality extend to protecting their rights under the equal protection clause?

Born-alive children: Rights and responsibilities

The absence of clear guidelines and legal provisions leaves born-alive children vulnerable and devoid of protection. Setting aside the divisive debate over the sanctity of life versus the autonomy of choice, a fundamental truth emerges: A child who survives abortion is not simply born-alive but is delivered pre-born, with rights to life and personal liberty. Articles 14 and 21 of the Constitution unambiguously recognise the legal personhood of infants born-alive following an attempted abortion. Consequently, the equal protection clause under Article 14 obliges the state to provide them with the same safeguards and privileges as any naturally born child.

Drawing from the precedent in Chairman, Railway Board, N.D. v. Chandrima Das, it becomes apparent that the right to life encompasses not only the right to be born but also the right to survive and flourish under the shelter of legal protection. Article 21’s mandate transcends mere existence; it ensures the holistic well-being and development of every individual, irrespective of the circumstances surrounding their birth.

Further, the Juvenile Justice Act, in its foundational principles outlined in section 3, emphasises the paramount importance of safeguarding the best interests of the child. While the “principle of family responsibility” typically places the duty of care and nurture on biological, adoptive, or foster parents, the absence of such arrangements in cases of born-alive children resulting from failed abortions raises the critical question: Who will assume responsibility for their upbringing?

The state’s duty

In light of these constitutional imperatives, it is essential to analyse the judgment of the Bombay High Court in XYZ v. Union of India [Writ Petition No. 10835/2018]. By permitting abortion at a later stage, the Court recognised the urgent need to address the legal void concerning the protection of born-alive children. The Court underscored that every doctor, whether at a government hospital or elsewhere, is professionally obligated to render services with the requisite expertise to protect the lives of such abortion survivors.

Regarding guardianship, the HC invoked the doctrine of parens patriae, granting the state the responsibility of acting as the child’s guardian. Moreover, the HC also directed the state to consider formulating a suitable policy to address cases where children are born-alive despite attempts at medical termination of pregnancy. Such a policy would ensure that these children receive medical support and facilities, as well as access to the adoption process, in adherence to the principle of the child’s best interests.

In addition, it’s my contention that a child surviving abortion is essentially a pre-born child, deserving critical protection and care. However, due to the absence of clear legal guidelines, questions arise regarding the liability of doctors to treat these children and the responsibility of the state to ensure their treatment.

Bridging gaps, empowering survivors

The US Born-Alive Abortion Survivor Protection Act, under Section 3 (Born-Alive Infants Protection), imposes a mandatory duty upon medical professionals present at the time a child is born-alive to exercise the same level of professional skill, care, and diligence to preserve the life and health of the child. Shouldn’t such a provision or guideline be deemed necessary in India, particularly given the rise in cases of late-term abortions?

As we navigate the complexities of reproductive rights, it’s imperative for lawmakers, jurists, and policymakers to bridge the existing gap in our regulatory framework. This ensures that born-alive children are not overlooked or neglected. Additionally, there is a pressing need to enhance awareness about the gestational limits for abortions outlined in the MTP Act. This awareness can empower rape survivors and unmarried girls to exercise their rights promptly, potentially saving lives and simplifying the issue.

Transcending ideological differences and focusing on practical solutions is paramount.

The writer is an advocate at the Supreme Court of India