On Tuesday, the Supreme Court declined a woman’s plea to abort her 26-week-old foetus detected with Down’s Syndrome. Senior advocate Colin Gonsalves argued that it was the woman’s constitutional right to terminate her pregnancy. It was contended that the congenital abnormality found in her foetus and the woman’s anguish about the future were the reasons for her decision.
The court refused permission for abortion, calling the foetus “a life”. It said the Medical Termination of Pregnancy Act of 1971 places a 20-week ceiling on termination of pregnancy.
However, this case is different from the ones that have preceded it. In January, the same Bench of Justices S.A. Bobde and L. Nageswara Rao had relaxed the 20-week cap to permit another woman to terminate her 24-week pregnancy . The foetus in that case was diagnosed with anencephaly — a congenital defect in which the baby is born without parts of the brain and skull. The court had said abortion was necessary to preserve the woman’s life. In the case of the foetus with Down’s Syndrome, the court said the foetus posed no danger to the woman’s life.
Had the draft Medical Termination of Pregnancy (Amendment) Bill of 2014 been implemented as law, this case would not have come to court at all. The Bill amends Section 3 of the principle Act of 1971 to provide that “the length of pregnancy shall not apply” in a decision to abort a foetus diagnosed with “substantial foetal abnormalities as may be prescribed”. Besides increasing the legal limit for abortion from 20 weeks to 24 weeks, the draft Bill allows a woman to take an independent decision in consultation with a registered health-care provider. Under the 1971 Act, even pregnant rape victims cannot abort after 20 weeks, compelling them to move court.
With the 2014 Bill in limbo, the Supreme Court has agreed to look into whether a wider interpretation ought to be given to phrases like “risk to the life of the pregnant woman” and “grave injury to her physical and mental health”.
Legal experts have argued that medical science and technology have made the 20-week ceiling redundant and that conclusive determination of foetal abnormality is possible in most cases after the 20th week of gestational age. Mr. Gonsalves has led arguments that at least 3% of the 26 million births annually in India involve severe foetal abnormalities.
