SC To Refer Plea Of A Woman To Abort Her 23-Week Pregnancy To A Medical Board

The Supreme Court’s Vacation Bench of Justices D.Y.Chandrachud and Sanjay Kishan Kaul today decided to refer on Friday to a Medical Board, the plea of a 33-year old pregnant lady from Kolkata, ​Sarmishtha Chakraborty, to abort her 23-week fetus on the ground that it suffered from abnormalities. Advocate Sneha Mukherjee appeared for the petitioner.

In her writ petition, she claimed that she had suffered immense mental and physical anguish as a result of the unreasonable 20-week restriction on abortion under Sections 2(b) of the Medical Termination of Pregnancy (MTP) Act. She claimed that during a fetal echocardiography conducted on her on May 25, it was first suspected that the fetus suffered from Tetrology of Fallot, a combination of four impairments in the heart.

Further, a subsequent fetal echocardiography done on May 30, confirmed the same. Because she crossed the 20-weeks, the denial of her right to an abortion has caused her extreme anguish and has forced her to continue her pregnancy while being aware that the fetus may not survive.

Her petition points out that out of 26 million births that occur in India every year, approximately 2-3 per cent of the fetuses have a severe congenital or chromosomal abnormality. Many suffer Intrauterine Fetal Death (IFUD) or are stillborn, the petition claims. With new 3D and 4D sonographic technology, it is possible to detect certain abnormalities before 20 weeks, while other abnormalities can be detected only after 20 weeks, the petition further reveals.

Many of these defects create risks to a woman’s health during pregnancy and delivery. In India, where many women do not have access to antenatal care, fetal abnormalities may only be detected during the first antenatal check-up late in the pregnancy, it is further claimed.

Section 3(2)(b) (ii) of the MTP Act allows for termination in the case of fetal “physical or mental abnormalities”. Where women do not have access to adequate antenatal care during the first 20 weeks of pregnancy, they lose the protection of the MTP Act.

The petition cites the Federation of Obstetric and the Gynecological Societies of India (FOGSI), a body comprising 24,000 plus members, as having stated as follows:

“The risk to the mother in case of termination of pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks.” FOGSI advised that “in case of fetal abnormality which has been detected late and which leads to an extremely serious handicap at birth, such fetus should be allowed to be terminated, even after 20 weeks.”

The petition contends that desperate women, who learn about a fetal abnormality after the 20th week, seek out unsafe abortions from untrained medical personnel. Illegal abortions are the third leading cause of maternal death in India and account for 13 per cent of maternal deaths worldwide.

The petition also cites laws in other jurisdictions which respect women’s rights to life, equality and health, by not including absolute time limits in their abortion laws. Most countries, it contends, consider the woman’s physical and mental health and doctors’ expert opinions in determining whether a medical termination of pregnancy can be performed post 20 weeks.

The petition challenges the constitutional validity of Section 3(2)(b) of the MTP Act, 1971, and the scope of Section 5 of the Act on the ground of its narrow and literal interpretation, particularly limited to the phrase “the termination of such pregnancy is immediately necessary to save the life of the pregnant woman”. It contends that these provisions would have been reasonable in 1971, when the Act was enacted, but have ceased to be reasonable now in view of stride in technology. It is perfectly safe for a woman to abort even upto 26th week and thereafter, it argues.

Secondly, determination of fetal abnormality in many cases can only be done after the 20th week, and 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 Supreme Court has given conflicting decisions in the cases of pregnant women wanting to terminate after 20 weeks, in recent months. While in some, it has given its permission on the basis of expert opinion of the medical board constituted by it, in other cases, absence of clear opinion of such boards in favour of abortion, has led to the Court denying the permission.