An Unborn Child Has A Life Of Its Own: Kerala High Court Dismisses Plea Seeking Termination Of 31 Week Pregnancy

The Kerala High Court recently held that when a Medical Board opines that the termination of pregnancy may result in a live baby and that the foetal abnormalities diagnosed are not lethal, in the absence of any threat to the mother's life or health, her reproductive choice will have to give way to the right of the unborn to be born.

Justice P.B Suresh Kumar while dismissing the petition seeking termination of a 31-week pregnancy remarked that the unborn has life from the stage it transforms into foetus, and that there is absolutely no reason to treat an unborn child differently from a born child.

"An unborn child has a life of its own and rights of its own and the rights of unborn are recognised by law. No doubt, only if the unborn can be treated as a person, the right to life of the unborn can be equated with the fundamental right of the mother guaranteed under Article 21 of the Constitution." 

The observation was made in a case where a pregnant woman, the gestation of whose pregnancy was about 31 weeks sought directions to the respondents to terminate her pregnancy.

The scheme of the Medical Termination of Pregnancy Act was that a pregnancy cannot be terminated medically after 20 weeks, even if the circumstances mentioned in Section 3(2) exist.

Advocate P.T Mohankumar appeared for the petitioner. 

She contended that although substantial foetal abnormalities were diagnosed, the respondents were refusing to terminate the pregnancy, as the outer time limit prescribed for termination in terms of the provisions of the Medical Termination of Pregnancy Act, 1971 was over. 

Accordingly, during the proceedings, the Superintendent of Alappuzha Medical College was directed to convene a medical board, conduct a medical examination of the petitioner and submit a medical report.

The medical board thereafter submitted its report stating that termination of pregnancy may result in a live baby who may need prolonged hospitalisation because of prematurity and hence recommended continuation of the pregnancy.

However, the petitioner argued that the foetal abnormalities could not be disputed in the light of the said report.

Upon perusal of Section 3(2) of the MTP Act, it was revealed that a pregnancy could be medically terminated only if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health or there is a substantial risk that if the child were born, it would suffer from serious physical or mental abnormalities as to be seriously handicapped.

It was undisputed that an outer time limit was prescribed within which a pregnancy could be terminated medically. 

However, the Court found that the constitutional courts in the country had been permitting termination of pregnancies medically if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health or there is a substantial risk that the child if born, would suffer from serious physical or mental abnormalities as to be seriously handicapped.

During the oral proceedings of the matter, the Court had also brought about a recent decision from the Bombay High Court where the medical termination of a 33 week old pregnancy was allowed by the Court. 

The respondent, represented by Government Pleader Vinitha B. argued that in that case, the Medical report itself had recommended termination of pregnancy considering the complications involved in the pregnancy. 

Following this, the Court said,

"The trend of the decisions rendered by the courts in this regard would indicate the inadequacy of the provisions in the Act to protect the fundamental right to life of the pregnant woman to its fullest extent, especially having regard to the advancement of medical technology for safe abortion."

Similarly, it was observed that according to the Amendment Act of 2021, termination of pregnancy would be lawful even if it was carried out beyond 24 weeks if a Medical Board constituted in terms of the provisions of the Act diagnosed substantial foetal abnormalities.

Therefore, the Bench found that the relief sought by the petitioner could not be granted at this stage since the Medical Board had not reported substantial foetal abnormalities in her pregnancy.

The Court said decisions in such cases were made in an attempt to balance the rights of the mother as well as the foetus. 

"In all cases where a court is called upon to adjudicate the question whether permission shall be granted to a pregnant woman for terminating her pregnancy on a plea of infringement of her fundamental right to life guaranteed under Article 21, the court is making a balance between the rights of the mother and the rights of the unborn.  No doubt, while doing so, if there is any threat to the life of the mother, the scales shall certainly tilt in favour of the mother, for if the life of the mother cannot be saved, the life of the unborn cannot be protected."

Therefore, it was found that when a duly constituted Medical Board opines that the stage of pregnancy is such that it may result in a live baby and that the foetal abnormalities diagnosed are not lethal, in the absence of any threat to the life or health of the mother, the reproductive choice of the mother which is a facet of the fundamental right guaranteed to her under Article 21 of the Constitution, will have to give way to the right of the unborn to be born.

The petition was accordingly dismissed.

Title: Indulekha Sreejith v Union of India and Ors

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