SC allows rape victim to abort 24-week-old foetus

Cap on MTP won’t apply when life of woman is in danger: Centre

Updated - December 04, 2021 11:07 pm IST

Published - July 25, 2016 03:37 pm IST - New Delhi

The Bench further said it is satisfied with the diagnosis of the medical board which has opined that the termination of pregnancy can be done. File photo

The Bench further said it is satisfied with the diagnosis of the medical board which has opined that the termination of pregnancy can be done. File photo

The Supreme Court on Thursday allowed a rape victim based in Mumbai to abort her 24-week-old abnormal foetus after the Centre clarified that a 20-week cap on termination of pregnancy is not applicable if the pregnant woman’s life is found to be in grave danger.

At the hearing, a Bench of Justices J.S. Khehar and Arun Mishra perused a confidential medical report on the condition of the woman, identified as only ‘Ms. X’, filed by a team of doctors at the K.E.M. Hospital.

Medical report

Justice Khehar read out the findings in the report to Attorney-General Mukul Rohatgi, who was summoned to assist the court in the case. The doctors had concluded that the pregnancy was 23 to 24 weeks old.

It said that continuance of the pregnancy would involve “grave danger” to the life of the pregnant woman.

Mr. Rohatgi clarified that though The Medical Termination of Pregnancy Act, 1971 mandates against abortion after pregnancy crosses the 20-week threshold, there are exceptions.

No time limit

“If the mother is in danger, there is no time limit for conducting an abortion. If you have to save life, you need to cross the limit of 20 weeks,” Mr. Rohatgi submitted.

The victim had challenged Section 3 (2) (b) of the 1971 Act, which allowed abortion only if pregnancy was under 20 weeks old and done on the advice of at least two registered medical practitioners, who should certify that the pregnant woman was risking “grave injury to her physical and mental health” or there was a danger of the child being born with a severe mental or physical handicap.

But Mr. Rohatgi pointed to Section 5 of the same Act, which overrides Section 3. Section 5 holds that none of the restrictions mentioned in Section 3 would apply if “termination of pregnancy is immediately necessary to save the life of the pregnant woman.”

To save mother

“It is life (of a foetus) versus life (of a pregnant woman) here...” Justice Mishra observed.

“The 20-week cap is meant to prevent female foeticide, which is a big problem,” Mr. Rohatgi said.

The Bench, in a short order, expressed its satisfaction with the medical report and said termination of the pregnancy in this case was permissible under Section 5 of the 1971 Act.

Cap unreasonable

The woman, who claims to have been raped by her fiance on the promise of marriage, had challenged the 20-week cap as a violation of the right to a dignified life.

The petition contended that the ceiling was unreasonable, arbitrary, harsh, discriminatory and violative of the right to life and equality.

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