Supreme Court allows rape victim to abort 24-week foetus

The bench said the cap of 20 weeks will be considered in an appropriate case.

The Supreme Court on Monday permitted a 26-year-old rape victim to abort her 24-week old foetus, following a report from a seven-member medical board stating that the foetus has congenital abnormalities and that the mother’s life would be in danger if the pregnancy is continued.

A bench of Justices J.S. Khehar and Arun Mishra took note of the submissions of attorney-general Mukul Rohatgi, that though there is a ban on medical termination of pregnancy beyond 20 weeks under the Medical Termination of Pregnancy Act, there is an exception clause which states that termination can be done if the foetus is considered a danger to the mother.

On the larger issue of the petitioner challenging the cap of 20 weeks for termination of pregnancy, the AG said that permitting abortion in every case will result in female infanticide and the question of “life-vs-life” will arise.

Accepted the A-G’s contention that while Section 3 of the Act does not permit the termination of a pregnancy that exceeds 20 weeks of uterine life, Section 5 lays down exceptions in the interest of the life of the mother, the bench said, “We grant liberty to the petitioner and if she desires to terminate the pregnancy, she is permitted.” The bench disposed of the petition stating that the legal challenge to cap of 20 weeks will be considered in an appropriate case.

Earlier, the bench perused the report of the medical board set up by Mumbai’s K.E. Medical College Hospital which stated that the foetus was not compatible with extra-uterine life, had multiple abnormalities and that continuation of the pregnancy would pose a grave threat to the mental health and physical well-being of the expectant mother.

The girl in her petition had said that though the foetus suffered from anencephaly — without a major portion of its brain, scull and scalp — doctors did not allow abortion, stating that termination of pregnancy after 20 weeks is prohibited even if there is fatal risk to the mother and the foetus.

She contended that that 20-week ceiling may be reasonable when the law was enacted in 1971, but has ceased to be reasonable today where technology has advanced and it is perfectly safe for a woman to abort even up to the 26th week and thereafter.

She said in many cases fetal abnormality can only be determined after the 20th week and so, by keeping the ceiling artificially low, women who obtain reports of serious fetal abnormality after the 20th week have to suffer excruciating pain and agony on account of the deliveries that they are forced to go through. The ceiling of 20 weeks, she said, is therefore arbitrary, harsh and discriminatory and violative of Articles 14 and 21 of the Constitution.