A recent judgment of the Supreme Court of India, allowing the medical termination of pregnancy at 28 weeks, has received significant media attention. Much of this attention stems from the arguments advanced on behalf of the All India Institute of Medical Sciences (AIIMS), which has sought for a reconsideration of the judgment.

Doctors at AIIMS argued that what the court described as a medical termination of pregnancy would, in reality, involve delivering a living child at 28 weeks, one likely to be born with serious medical complications, long-term co-morbidities and disabilities. They asked that the delivery be pushed by six weeks to improve the child’s chances of survival. These arguments were rejected by the court in rather strong terms.

A doctor’s ethical burden

The nature of the doctors’ argument is not inherently distinct from claims about a (much younger) foetus’ interest in being carried to term. In both cases, more time in the womb increases the chances of survival outside it. However, since a 28-week foetus is at a more advanced stage of gestation, two things change about the claim.

First, doctors are better able to predict both the foetus’ chances of survival and the medical complications it may face, making concerns about neo-natal care and future health more concrete. Second, and not unrelatedly, the ethical burden of the doctor who must perform the delivery increases significantly. Where a foetus is not viable, the doctor’s sole obligation is to the pregnant woman. But where a living child may be delivered, the doctor’s obligations extend to that child as well. A doctor may, therefore, experience the procedure not merely as an abortion, but as a medically induced premature delivery that immediately creates an obligation to preserve life. While the court’s order protects her from legal action, it does not extinguish her ethical and moral obligations as a doctor and as a human being.

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None of this necessarily undermines the court’s decision. Faced with an unwed minor who had reportedly attempted suicide twice, the court understandably prioritised her reproductive autonomy and well-being. But the doctors’ objections, though framed as concern for the unborn child, also reflect a potent anxiety: the ethical burden placed on medical professionals asked to perform such procedures at the edge of foetal viability. This burden need not change how we think about the outcome of the case, but it deserves to be acknowledged for the ethical tensions underlining it.

On adolescent sexual activity

These ethical tensions are not accidental or anomalous. The immense trauma endured by the unwed minor, the predicament of the unborn but viable foetus, and the ethical burden of the doctors are all symptomatic of a deeper structural issue. Cases like these arise because of a serious and largely unnoticed failure of the state to deal appropriately with the phenomenon of teenage sex. In this case, a de-facto consensual sexual relationship between a 15-year-old girl and her 17-year-old partner resulted in pregnancy. The pregnancy went unnoticed until the minor’s mother reportedly observed ‘an unusual heaviness’ in her abdomen, by which time it was already too advanced to terminate without court intervention. This is because the Medical Termination of Pregnancy Act, as amended in 2021, does not allow abortions beyond 24 weeks even in exceptional circumstances.

The Indian state’s approach to the issue has largely been one of blanket criminalisation: all sexual activity involving minors is treated as a criminal offence, regardless of whether it involves coercion, exploitation, or de-facto consensual sexual activity between adolescents. Studies from the U.S. have shown that abstinence-only policies fail to prevent adolescents from having sex. Empirical studies on the Protection of Children from Sexual Offences Act, 2012 (POCSO) in India have also repeatedly shown that nearly 10-15% of all cases before the POCSO special courts involve de-facto consensual relationships, and there is nothing to suggest that the law manages to deter such sex amongst adolescents.

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If anything, this criminalisation works in tandem with the absence of adequate and comprehensive sex education in educational institutions.

Policies such as the ban on condom advertisements between 6.00 a.m. and 10.00 p.m., and a generally repressive culture around sex brush questions of sex and sexuality under the carpet. Instead of teaching adolescents the essentials of safe sex, menstruation, sexually transmitted diseases and pregnancy, the answer to all questions around sex and sexuality is reduced to a simplistic “don’t do it”. However, preventing cases such as this is more likely to require comprehensive sex education and an emphasis on safe sexual practices.

The way forward

Such policies require a more nuanced conversation around adolescent sexuality, in which we are willing to acknowledge that de-facto consensual sexual interactions involving adolescents exist and should not be conflated with instances of child rape and exploitation. They also require a commitment to steady long-term measures, which may not provide short-term rhetorical gains.

Thus, if our concern is truly the well-being of adolescents, the solution is not a refusal to acknowledge their sexuality but a commitment to engage with it honestly and meaningfully.

Shraddha Chaudhary is Assistant Professor, School of Law, BML Munjal University