Abortion Laws- SC Permits the Abortion of a 30-Week Foetus
A 14-year-old girl who was sexually assaulted has been granted permission by the Supreme Court (SC) to end her almost 30-week pregnancy.
On 22nd April 2024, Monday, a bench headed by Chief Justice of India (CJI) D Y Chandrachud declared that the girl’s circumstance was “very very exceptional” and that “we have to protect her.”
A Bench stated that the dean of a Mumbai municipal hospital had “clearly opined that the continuation of the pregnancy against the minor’s will may impact negatively on the minor’s physical and mental well-being, who is barely 14 years old,” in a report submitted on the matter.
What is the Abortion Law?
Pregnancy can be terminated in the following situations according to the Medical Termination of Pregnancy Act, 1971 (MTP Act). Termination on the recommendation of one doctor is permitted for up to 20 weeks. Abortion is permitted as an exception for pregnancies between 20 and 24 weeks, but only in specific circumstances and following the assessment of the right to terminate the pregnancy by two licenced medical professionals.
Seven categories of forced pregnancies are listed in Section 3B of the Rules under the MTP Act. These categories include women with impairments, statutory rape in cases of sexual assaults or children, or when a woman’s marital status changes while she is pregnant.
The law mandates that a medical board be established in approved facilities after 24 weeks of pregnancy. This Board will only be able to “allow or deny termination of pregnancy” if there is a significant foetal abnormality.
Has the Court Permitted Termination for a Longer Amount of Time?
In certain instances, yes it has. On 1st February, of this year, the Delhi High Court (HC) granted the 26-year-old woman’s request to end her 32-week pregnancy but then revoked its decision when the Centre urged the court to take the unborn child’s right to life into consideration.
On 16th October 2023, a married woman seeking an abortion in her third pregnancy was denied by a three-judge bench presided over by the Chief Justice of India.
The lady claimed that her pregnancy was unforeseen and that she lacked the financial means and mental capacity to raise the kid.
Following a divided decision on the woman’s petition by a two-judge bench, this case was transferred to a three-judge bench. The abortion was permitted on 9th October, by this bench, which was made up of Justices Hima Kohli and B V Nagarathna.
However, Justice Kohli overturned her decision when the Union Government requested a recall order in response to a report from an AIIMS doctor stating that the foetus was viable.
Previously, on 21st August 2023, a bench led by Justice Nagarathna convened a special meeting on a Saturday- the day the court normally closed- to approve the rape survivor’s pregnancy termination at 27 weeks and 3 days.
Before that, in September 2022, an unmarried woman who was 24 weeks pregnant and had been in a consenting relationship was granted an abortion by a bench chaired by Justice Chandrachud, who was not the Chief Justice at the time.
In that instance, the Bench noted that transformative constitutionalism promotes and engenders social change and stated that the law needs to continue to consider the fact that considerable changes in family arrangements have resulted from societal developments.
There have also been cases where a court has invalidated the medical board’s decision to permit termination.
The Gauhati HC overturned the medical board’s decision to withhold an opinion about the termination of a child rape survivor’s pregnancy of more than 26 weeks in “Bhatou Boro v. State of Assam” (2017).
Consideration of “Foetal Viability”
The CJI-led Bench stated on 13th October, 2023, that it was important to balance out the rights of an unborn kid, and that a woman’s rights must trump when it came to abortion.
Meaning of “Foetal Viability”
In 1973, foetal viability was estimated to be 28 weeks, however, due to scientific advancements, it is now estimated to be 23-24 weeks.
Our legal system is superior to those of other nations. This will not be a “Roe versus Wade” scenario. The CJI noted that our law is pro-choice and liberal.
Although courts have interpreted the MTP Act, broadly, India is a new country where abortion is permitted only if the threshold of “foetal viability” is met.
The historic Roe v. Wade decision from the US Supreme Court in 1973 recognised abortion as a constitutional right and permitted abortion up to the point of foetal viability, or the moment at which a baby may survive outside the womb.
The law in India is criticized for giving doctors, not the woman, the authority to decide whether to end a pregnancy after 20 weeks.
Even while there is not a legal challenge to this part, there is a legislative gap indicated by the many instances in which women approach the court at the last minute.
The legal framework in India on reproductive rights leans more in favour of the woman’s ability to make her own decisions than it does for the rights of the unborn child.