Abstract
The Termination of pregnancy in the late second and third trimester poses deep medical, legal, and ethical issues. In India, the Medical Termination of Pregnancy (MTP) Amendment Act 2021 extends abortion access to 24 weeks for specific cases such as rape survivors and fetal abnormality and allows medical boards to approve termination beyond that point if the mother’s life is at risk or for severe fetal anomalies. However, there are chances of inadvertent neonatal survival. To avoid this, making a feticide procedure, usually intracardiac potassium chloride injection, antecedent to induction of labor and prior to the termination procedure has been advised by the Ministry of Health and Family Welfare (MoHFW) (2017, 2018) as well as medical boards of top institutions such as AIIMS. Although these steps are taken in an attempt to prevent legal as well as administrative issues, they put the physicians into ethical dilemma, undermining the Hippocratic oath of saving life. This article discusses India’s complex legal and ethical issues regarding late-term abortion. It highlights an ethical problem: whether to perform feticide or not, as it conflicts with the core medical principle of preserving life.
Keywords
Introduction
Abortion is a complex global issue that includes women’s rights, medical ethics, and the question of fetal viability. Globally, abortion is broadly legal in early pregnancy; however, late-term abortions, performed after the point of viability, have significant ethical challenges. In India, according to the Medical Termination of Pregnancy (Amendment) Act, 2021 abortion can be done up to 24 weeks in certain situations and termination after this period is subjected to the permission of the Medical Board where the life of the mother is in danger or fetal abnormality is incompatible with life. 1 Generally, the reasons for seeking late term abortion are late detection of fetal anomalies and pregnancies following rape. In India, fetal viability outside the womb is generally considered at around 28 weeks of pregnancy, 2 though advances in neonatal care are pushing it closer to 24–26 weeks in tertiary centers. If an abortion is performed this late and the infant is accidentally born alive, it’s called inadvertent neonatal survival. If the infant is born alive, it becomes a legal person with full rights, creating ethical and legal challenges for doctors. 3
In anticipation of such outcomes, the Ministry of Health and Family Welfare (MoHFW) provided guidelines in 2017 and 2018, recommending that abortion after 20–24 weeks should involve a procedure to interrupt the fetal heartbeat (feticide) prior to induction. 4 These guidelines have been supported by medical boards in AIIMS and have been cited in judicial decisions, including the Supreme Court and the Delhi High Court.5, 6
International guidelines, including those of the Royal College of Obstetricians and Gynaecologists (RCOG), the American College of Obstetricians and Gynecologists (ACOG), and the Society for Family Planning, also advise feticide prior to late-term termination to prevent live birth.7–9 While doctors follow safe technical procedures, they still face the ethical dilemma of intentionally ending a fetal life. This review article gives insights into the Indian legal framework, MoHFW guidelines, and court judgments, contrasting them with global clinical guidelines, and highlights the ethical contradictions that feticide imposes on doctors and hospitals by the State.
Legal and Clinical Background in India
The MTP Act 1971, and its 2021 Amendment, liberalized access to abortion in India under defined circumstances: Up to 20 weeks: approval by one registered medical practitioner. 20–24 weeks: approval by two practitioners, for specified categories (rape survivors, minors, etc.). Beyond 24 weeks: Medical Board approval where maternal life is at risk or in cases of severe fetal abnormalities.
1
Age of Viability
Indian neonatology generally recognizes 210 days (approximately 28 weeks) as the threshold of viability, although survival has been documented as early as 24–26 weeks with modern NICU care. 2
Court Orders
Madhya Pradesh High Court (2022): Allowed termination at 31 weeks for a 16-year-old rape survivor, ruling continuation posed greater harm. It mandated that if a neonate was born alive, the State must assume custodial responsibility, and a portion of fetal tissue be preserved for legal purposes. 3 Delhi High Court (2022): At 27 weeks, an AIIMS medical board informed the court that “foeticide will have to be performed to ensure the baby born is not alive.” 6 Supreme Court (2022): AIIMS submitted that without fetal demise, termination would result in preterm live birth, citing MoHFW guidelines (2017, 2018). 5 These judicial interventions reflect a dependence on feticide as a medico-legal safeguard.
Right to Life of the Unborn Under Article 21
The Supreme Court has also recognized that the right to life under Article 21 extends in a limited sense to the unborn child, placing a duty on the State to protect fetal life while balancing it against maternal autonomy (
Ethical Dilemma
Legally, a fetus delivered with signs of life is considered a liveborn child, regardless of gestational age. For doctors and hospitals, this creates an obligation to provide resuscitation and life-saving care as required by both medical ethics and the law.
Failure to do so could lead to charges of negligence or even culpable homicide under IPC/BNS. 11 At the same time, hospitals face the challenge of allocating limited NICU resources at very high costs.
When parents refuse custody, such as in cases of rape or severe anomalies, the responsibility shifts to the State under the Juvenile Justice Act. This involves ensuring nutrition, medical treatment, foster care, and facilitating adoption when possible.
These responsibilities place a significant and ongoing financial and administrative load on government systems.
The situation is further complicated by the high costs of NICU care for extremely preterm newborns, where survival rates remain uncertain. Both hospitals and governments also face the constant risk of litigation and public criticism, particularly if neonates suffer. In this context, feticide guidelines emerged as a way to prevent accidental neonatal survival and to ease the burden on doctors, hospitals, and the State.
MoHFW Guidelines and Indian Medical Board Recommendations
The MoHFW guidance notes (2017, 2018) explicitly recommend “stopping the fetal heartbeat” prior to late-term termination. 4 These guidelines have been repeatedly cited by AIIMS and other medical boards before the judiciary.5, 6
The most common procedure is ultrasound-guided intracardiac potassium chloride (KCl) injection, sometimes combined with lidocaine, to induce immediate asystole. 12 Indian retrospective studies report high efficacy and safety in achieving fetal demise, reducing risks of maternal hemorrhage and avoiding neonatal survival. 13
International Guidelines and Clinical Protocols
World Health Organization (WHO), in its
Feticide raises difficult ethical questions as it involves deliberately ending a potential life, which seems to conflict with the medical duty to promote wellbeing. Unlike withholding treatment, it is an active intervention that directly causes death, challenging the principle of “do no harm.” Since doctors are entrusted by society to protect life, the legalization of feticide may weaken public trust in the medical profession as guardians of life. Moreover, physicians are not merely agents of the State but moral agents themselves, and participation in feticide can lead to moral harm, feelings of guilt, and psychological distress. 15
The States’ and Hospitals’ Points of View
From the State’s perspective, concerns include custodial responsibilities under the JJ Act, the financial burden of long-term care, and possible criticism if abandoned neonates are born alive. Hospitals, on the other hand, fear legal consequences related to medical complications, prolonged neonatal care, and scrutiny over the legality and ethics of feticide. As a result, existing feticide guidelines are often shaped more by institutional convenience than by the needs of patient care.
Ethical Alternatives and Reconsideration
There are ethical alternatives to feticide that deserve attention. Neonatal palliative care can provide comfort to extremely preterm newborns without forcing aggressive interventions. Adoption is another option, as thousands of couples in India are registered and waiting to adopt, making each unwanted life a potential source of hope. 16 Physicians should also have the right to conscientious objection, allowing them to refuse participation in feticide if it conflicts with their moral values.
Discussion
Ohel-Shani and Yassour-Borochowitz, in their study conducted in Israel in 2021, observed that feticide in late termination often causes moral distress for physicians, who struggle to balance their role as healers with ending potential life. 17 A qualitative study of maternal-fetal medicine specialists in the United Kingdom, done by Fay et al., explored the experiences of maternal-fetal medicine specialists in performing feticide during late termination of pregnancy. Specialists described the procedure as difficult but necessary, often creating moral tension between their role as healers and the act of ending potential life. They coped by rationalizing it as part of their job. Still, there are concerns about the ethical and emotional challenges involved in this practice. 18
A comparison of Indian and foreign systems shows that while there is clinical agreement in favor of feticide, there is not enough attention to the ethical responsibility of doctors. While authors consider late-term feticide to be ethically and morally challenging, some practitioners believe it can reduce the moral, ethical, and legal dilemmas doctors face during such procedures. Their view reflects a fear that complications from a live birth in these situations could create serious clinical and legal problems. 19 The guidelines, aimed at reducing administrative difficulties, risk weakening the physician’s role as a healer by making it serve more as an instrument of State convenience. Essentially, the policy basis is defined less by feeling, but by practicality avoiding the development of unwanted individuals. Such a rational system could be beneficial in a lessening of institutional stress; yet, it is a danger in subverting the ethical foundations of practice in the field.
Conclusion
Feticide in late-term termination is an expression of a profound contradiction among law, medicine, and ethics. International and Indian guidelines feature fetal demise as a practical prerequisite, yet the ethical contradictions are striking. Doctors are in a moral dilemma, forced into a contradiction with their profession of saving lives.
Policymakers and judicial institutions must reconsider giving priority to administrative efficacy against medical ethical concerns. Both adoption and neonatal palliative care are compassionate substitutes. Ultimately, the essence of medicine lies not in eliminating burdens but in upholding the sanctity of life, even in its most fragile forms.
“Every child comes into this world with the message that God is not yet discouraged of man.”
—Rabindranath Tagore
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Ethics Approval and Informed Consent
Not applicable.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
