P&H HC To Examine Constitutional Validity Of Prohibition On Termination Of Pregnancy Beyond 20 Weeks [Read Order]

Taking note of repeated petitions seeking directions for termination of pregnancy before it, the Punjab and Haryana High Court has decided to examine the constitutional validity of the provision of Medical Termination and Pregnancy Act, 1971 which prohibits the termination of pregnancy after a period of 20 weeks.

While considering one such petition seeking termination of pregnancy, Justice Rajbir Sehrawat observed that even in cases where the medical opinion highlighted the risk to the life of the would-be-mother/woman, as well as, a risk of death and/or extreme hardship to the still born child, in case he/she comes in this world, on account of development of deformities and incurable disease, medical professionals are not terminating the pregnancy on their own; even in these extreme cases. The Court observed:

"As a result, some educated and well-off couples might have been successful in saving the life of the would-be mothers/women. However, there would be thousands of couples who are either not able to avail the legal assistance and legal remedies by approaching this court in time or who might be living in abject poverty and therefore, are not able to avail the legal remedy at all. In such situation, the would-be-mothers/women would not have any choice except to lose their own lives in some cases or to give birth to totally lunatic or destitute or incapacitated children, despite the fact that there had been a competent advise from the medical professional for termination of those pregnancies.", the Judge observed:

The court further noted that, though Section 5 of the Act provides for some relaxation in mandatory prohibitive period of 20 weeks, it does not deal with a situation qua fetus with extreme deformity or disease. "This may render the life of such child to be a hell, if he/she is actually born.", the judge added. The judge further observed:

"No remedy, whatsoever is provided for, in the Act, if any deformity/disease or any terminal problem happens to the fetus after the prescribed period of 20 weeks. Needless to say; that so far the science and technology has not been so advance as to prevent the development of any complication/disease or deformity in the fetus after a period of 20 weeks. In such a situation, if such a disease, deformity or complication develops after 20 weeks, then if this provision remains on the statute book, the would-bemother/woman is bound to lose her life, along with the life of the fetus/still born child, unless she happens to be already on operation table of the Medical practitioner to take advantage of relaxation provided by Section 5 of the Act."

Taking note of some earlier judgments, the judge observed that the continuation of such a pregnancy; against the medical advice; as violative of fundamental rights of the would-be-mother/woman. "If the provisions happens to be in violation of the fundamental rights of the would-bemother/woman, then such a provision cannot exist on the statute book. ", the judge said while issuing notice.

The case is next posted on 10 August 2020.

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