'Why Kill The Child? Give It In Adoption': Delhi High Court Reserves Order On Unmarried Woman's Plea Seeking Termination Of About 24 Weeks Pregnancy

The Delhi High Court has reserved order on the petition filed by a young unmarried woman in her 20s, seeking permission for medical termination of about 24 weeks old pregnancy, following a split-up with her partner.

The petitioner's pregnancy would complete 24 weeks on 18th of this month.

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad while reserving the order, suggested that the Petitioner has passed significant period of the pregnancy duration and that she should consider delivering the child and giving it in adoption.

"Why are you killing the child? There are big queue for adoptions...We are not forcing her (Petitioner) to raise the child. We will ensure that she goes to a good hospital. Her whereabouts will not be known. You give birth and come back."

The observations come in the backdrop of legal bar on termination of pregnancy after 20 weeks, except in certain circumstances specified under the Medical Termination of Pregnancy (Amendment) Act, 2021.

Section 3(2)(b) of the Amendment Act provides that a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy exceeds 20 weeks but does not exceed 24 weeks in case of vulnerable women (including rape victims), if not less than two registered medical practitioners are of the opinion that— (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanation 1 to the provision states that where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

The Petitioner's counsel sought refuge under Section 3(2)(b). He submitted that the Petitioner was not physically, mentally, financially fit to bring up the child being a single unmarried parent and that it will cause her mental trauma and will be a social stigma.

Stating that permitting an abortion at this stage would amount to virtually "killing the child", the Bench asked the counsel for the Petitioner to seek instructions.

In the post-lunch session, the bench was informed that the Petitioner is not willing to carry the pregnancy any further.

Hearing this, the Chief Justice orally remarked,

"We can't kill the child. Law doesn't permit us...She carried the child for 24 weeks. Why not 4 more weeks?"

The State opposed the petition, arguing that Section 3(2)(b) is not applicable to the Petitioner. He mentioned that the Act contemplates various circumstances under which a woman may seek termination of pregnancy and this includes circumstances where termination may be permitted even post 24 weeks. However, such provisions are not attracted to the instant case.

The counsel for petitioner then argued that in case the Petitioner had been a widow or a divorcee, she would not even have to take permission from the court. It is owing to her status as an unmarried woman that she was required to take permission from the court. The petitioner, while highlighting the legislative intent of amending Section 3(2)(b) in 2021, stated that legislature had via its amendment, permitted termination of pregnancy in light of new medical advancements.

However, Justice Prasad opined that if such termination of pregnancy was supposed to be permissible by law, the legislature would have included it in the amendments as well.

The counsel for the petitioner argued that hers was a genuine case where she was "ditched" at the last moment by her partner and that if termination is not permitted, it would cause great injury to her mental health and be violation of her reproductive rights.

He further submitted that Section 3(3) of the MTP Act, which stated that "in determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section(2) account may be taken of the pregnant womens' actual or reasonable foreseeable environment", would also be applicable in the present case. It was submitted that the petitioner was the eldest daughter and had 4 younger brothers and her parents were both farmers. In such a situation, giving birth to a child would cause mental trauma. 

The petitioner relied on two judgements of the Bombay High Court, one where the termination of pregnancy of 26 weeks was allowed (Priti Mahendra Singh Rawal v Union Of India And Ors.), and another 2021 judgement (Sidra Mehboob Shaikh alias Sunita Raja Pramanik v. State of Maharashtra & Anr) where a domestic violence victim was allowed to terminate her pregnancy. In both the judgements, the petitioner highlighted, the court had given emphasis on mental health, which has been categorised differently than mental illness. 

The bench then indicated that it might refer the matter to AIIMS for medical opinion.

CASE TITLE: MS. X v. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF INDIA