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SC gives liberty to abort 24-weeks-old ‘abnormal’ foetus

Supreme Court

    
New Delhi : Giving benefit of a provision in the abortion law, the Supreme Court today allowed a rape survivor to abort her 24-week-old ‘abnormal’ foetus, on the ground that continuance of pregnancy would gravely endanger her physical and mental health.

The apex court gave benefit of the exception in law under section 5 of the Medical Termination of Pregnancy Act, 1971, which allows abortion after 20 weeks only in case if there is grave danger to the life of a mother.

“The medical board has opined that the continuance of pregnancy would gravely endanger the physical and mental health of the mother. We are satisfied with the diagnosis and it is permissible to terminate the pregnancy as per section 5 of Medical Termination of Pregnancy Act, 1971.

“We grant liberty to the petitioner and if she desires to terminate the pregnancy, she is permitted,” a bench comprising Justice J S Khehar and Arun Mishra said.

During the hearing, a report of seven member medical board of King Edward Memorial College and Hospital at Mumbai which has diagnosed the health of the woman was tabled before the bench in a sealed cover.

The apex court said that the medical board has found serious abnormalities in the foetus which is around 24 weeks old and has opined grave risk to the mother’s life if pregnancy is allowed to continue.

It said that board has recommended that the termination of pregnancy can be done.

Attorney General Mukul Rohatgi appearing for the Centre said that their is exception under section 5 of the Medical Termination Act, 1971 and ceiling of 20 weeks pregnancy under section 3 of the Act will not apply in this case as there is risk to mother’s life.

Rohatgi further said that there is a larger issue involved in the matter which could be dealt separately.

To this the bench said that the larger issue of challenge to constitutional validity of provisions of the abortion law which prohibits termination of pregnancy after 20 weeks even if there is a fatal risk to the mother and the foetus, will be dealt by another bench where a similar petition on the issue is pending.

The apex court had on July 22 asked the medical board to examine the woman and submit its report before it.

The woman has challenged the constitutional validity of provisions of the abortion law which prohibits termination of pregnancy after 20 weeks.

In her petition, the woman has alleged that she was raped by her ex-fiance on the false promise of marriage and became pregnant and sought a direction to quash section 3 (2)(b) of the Medical Termination of Pregnancy Act, 1971 to the extent that it puts a ceiling of 20 weeks for an abortion as it is ultra vires to Article 14 and 21 of the Constitution.

Her plea has contended that the ceiling is unreasonable, arbitrary, harsh, discriminatory and violative of the right to life and equality.

The woman has also sought an order for the Centre to provide necessary directions to hospitals for setting up an expert panel of doctors to assess the pregnancy and offer medical termination of pregnancy (MTP) at least to those women and girls who are survivors of sexual violence and have passed the period of 20 weeks.

The woman, who is in 24th week of pregnancy, has said she belongs to a poor background and her physical and mental health have been put at risk due to the 20 weeks limit for abortion as her foetus suffers from anencephaly (a serious birth defect in which a baby is born without parts of the brain and skull) but doctors have refused to abort it.

The plea also said the expression “save the life of the pregnant woman” in Section 5 of the MTP Act, should include “the protection of the mental and physical health of the pregnant woman” and also incorporate situations where serious abnormalities in the foetus are detected after the 20th week of pregnancy.

The apex court is already hearing plea of Mumbai-based doctor Nikhil D Datar, who had also raised the same issue in 2009 and sought an amendment to the Medical Termination of Pregnancy Act.

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