Upholding her right to choose, the Supreme Court on Monday allowed a woman to abort her over 20-week-old foetus with severe abnormalities.
A Bench of Justices Dipak Misra and A.M. Khanwilkar, dictating the order in an open court, took note of the mental stress suffered by Sharmishta Chakraborty.
The law does not permit abortion if the foetus is over 20 weeks old.
A woman’s right
Ms. Chakraborty had approached the Supreme Court seeking permission to abort her foetus after she discovered that it suffered from a severe form of cardiac impairment called pulmonary atresia. She presented to the court a report by paediatric pulmonologist, Devi Shetty, which said there was a high possibility of permanent brain damage.
The right of a woman to have a reproductive choice was part of personal liberty, Justice Misra observed in the order. The court said every woman had a sacrosanct right to bodily integrity. It allowed the abortion to be conducted at a Kolkata hospital.
On June 24, the court wanted to stretch the law on abortion that would allow termination of pregnancy beyond 20 weeks if the foetus suffered from severe abnormalities. It had referred the present case to a medical Board for an expert opinion.
Ms. Sharmishta, in her petition, stated that of the 26 million births that occur in India every year, approximately 2-3 per cent of the foetuses had severe congenital or chromosomal abnormality. Many suffered Intrauterine Foetal Death (IUFD). It was possible to detect certain abnormalities before 20 weeks, but some could be detected only after that period.
Court’s orders have been on a case-to-case basis
The Supreme Court’s decision whether a woman should be allowed to abort or not after the 20 weeks period has been on a case-to-case basis. The primary factor that has guided its decisions has been the expert opinion of a court-appointed medical board on the risk it poses to the mother and the child.
Medical Termination of Pregnancy Act of 1971 bars abortion if the foetus has crossed the 20-week mark. An exception to the law is made if a registered medical practitioner certifies to a court that the continued pregnancy is life-threatening for the mother or the baby.
In May this year, the court refused the plea of an HIV-positive rape victim, a destitute from Patna, to abort her 26-week-old foetus after the medical report concluded that the abortion would be risky to both the woman and the child. Instead, the court ordered the Bihar government to pay the 35-year-old a compensation of ₹3 lakh.
The Patna High Court had earlier rejected the woman’s plea to abort, saying the State had a compelling responsibility to keep the child alive. In another case, the court had refused a woman’s request for permission to abort her 26-week-old foetus diagnosed with Down’s Syndrome, a genetic disorder. The court said Down’s Syndrome did not qualify as a life-threatening factor. There was no physical risk to the mother from the pregnancy.
The Supreme Court has seen a flood of such cases from various parts of the country. In one such case, the court had allowed a 22-year-old Mumbai woman to terminate a 24-week pregnancy after doctors said the foetus was malformed. The court had in that case justified its order, saying it was in the “interest of justice, particularly the right of the petitioner (woman) to preserve her life...”
In 2015, the court allowed the plea of a 14-year-old rape victim to exercise her right as a woman to make a dignified choice and abort her 23-week-old foetus. The Class 10 school girl was denied permission by the Gujarat High Court, which held that it was too late to abort. The victim said she could not bear the “severe psychological, physical and emotional trauma of going through a full term pregnancy and eventually be in helpless situation unable to either raise her child properly or to grieve.”
She said that a “woman’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution.” “It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected,” her petition said. It was this petition which was quoted by the Supreme Court on Monday in the order allowing the Kolkata woman to abort her abnormal foetus of over 24 weeks.