RIGHTS OF A CHILD IN WOMB: THE RECENT RULING OF THE SUPREME COURT OVER THE ABORTION OF 27-WEEK PREGNANCY

Arya Kane,

Maharashtra National Law University, Aurangabad

In India, the rights and regulations for abortion are covered under The Medical Termination of Pregnancy Act 1971 which is popularly known as the MTP Act. According to the Medical Termination of Pregnancy Act, abortion is a facet of the reproductive freedom of a woman.

Earlier miscarriages and abortions were covered under [[i]]The Indian Penal Code 1860 of which section 312 states that if a miscarriage is caused due to a reason other than saving the life of the woman then it is considered as an offence and the woman along with the person who conducted such miscarriage is punishable. This led to several illegal abortions by non-medical personnel causing the death of several women which necessitated the need for legislation relating to pregnancy and abortions. This marked the introduction of The Medical Termination of Pregnancy Act 1971. [[ii]] 

According to the Medical Termination of Pregnancy Act, the medical termination of pregnancy is legalised under certain circumstances. These circumstances include the situations where the continuation of pregnancy poses a threat to the life of the pregnant woman and if it continues it leads to an injury to the mental and physical health of the pregnant woman.

It also has a provision for the abortion of pregnancy caused due to rape or failure of a contraceptive device which safeguards the women from the injury to their mental health due to such pregnancies.

The Fundamental Right to life and the abortion rights of the women are closely linked. According to the recent order passed by the Supreme Court, the foetus growing in the mother’s womb has the right to live and the reproductive freedom of the women does not extend to termination of pregnancies of more than 24-weeks if it does not posses a threat to the life of the pregnant woman as well as the child growing in her womb. [[iii]] 

Covering the ambit of The Medical Termination of Pregnancy Act 1971, on Wednesday, 15 of May 2024, a 20 year-old unmarried woman approached the Supreme Court to seek abortion of her 27-week pregnancy. The Hon’ble Supreme Court refused to entertain her plea stating that the child growing in her womb has a fundamental right to live and the pregnancy was of over seven months by then.

This order was passed by a learned bench of Supreme Court comprising of Justice B R Gavai while hearing the woman’s plea which challenged the Delhi High Court’s order passed on May 3 which refused the termination of her pregnancy.

The bench also comprised of Justices S V N Bhatti and Sandeep Mehta who told the counsel representing the woman that the bench cannot pass an order which is contrary to the existing statute.

When the bench asked about the fundamental right of the child in the womb to live, the counsel responded that The Medical Termination of the pregnancy Act talks about the pregnant woman or the mother only. The council also mentioned that the survival of the foetus is the right of the mother until it is born.

While arguing in the court to consider the mental and physical well-being of the 20-year-old pregnant woman, the counsel mentioned that the woman in the present case is going through a very traumatizing condition as she is taking classes for the National Entrance cum Eligibility Test and it has become extremely difficult for her to face the society at this stage.

In the High Court’s order, the court had directed that a medical board to be constituted by the All-India Institute of Medical Sciences (AIIMS) to examine the condition of the foetus and the pregnant woman.

The medical report confirmed that there was no abnormality in the foetus and it did not pose any danger on the woman which will necessitate her to terminate her pregnancy and hence the woman can carry on with her pregnancy.

The petitioner in this case mentioned that abdominal discomfort was felt by her on 16th of April 2024 and an ultrasound scan was done thereafter. The ultrasound scan indicated that she was 27 weeks pregnant.

According to the Medical Termination of Pregnancy Act 1971, the medical termination of pregnancy is legally permissible only upto 24-weeks of pregnancy. In case of pregnancies more than that of 24 weeks the termination is subject to the opinion of the medical board only. If a foetal abnormality or a threat to the life of the pregnant woman is diagnosed by the medical board then only such a termination can be allowed.

This provision provided a strong base for the rejection of the plea by the Supreme Court in order to uphold the fundamental right of the child in the womb to ensure justice.

References:

[i]India Code: Section Details, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=350.

[ii]National Institutes of Health(May 20, 2024), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10470576/.

[iii] Economic Times, SC rejects plea for termination of over 27-week pregnancy, says foetus has fundamental right to live, The Economic Times (May 15, 2024), https://m.economictimes.com/news/india/sc-rejects-plea-for-termination-of-over-27-week-pregnancy-says-foetus-has-fundamental-right-to-live/articleshow/110145705.cms.