17-May-2024-Special-Article

SUPREME COURT UPHOLDS RIGHT TO LIFE OF FOETUS 

The Supreme Court recently declined a plea from a 20-year-old unmarried woman seeking to terminate her over 27-week pregnancy.  

This decision upheld the Delhi High Court’s earlier ruling.  

The case brings into focus important aspects of the Medical Termination of Pregnancy (MTP) Act and the rights associated with abortion in India. 

Key Observations by the Court 

• Child’s Right to Survive: The Supreme Court emphasized the advanced stage of pregnancy and the potential rights of the child to survive. 
• Petitioner’s Argument: The petitioner highlighted the focus of the MTP Act on the mother’s rights and her delicate state. 
• Medical Assessment: The Delhi High Court had a panel of AIIMS doctors assess the situation. The panel concluded there were no congenital abnormalities or risks to the mother that necessitated termination. 

Important Judgments by the Supreme Court Regarding Abortion 

X v/s NCT of Delhi (2022): 

• Women have the right to terminate pregnancies between 20 and 24 weeks due to any “change in their material circumstances.” 
• Women have sole authority over their bodies and are the ultimate decision-makers regarding abortion. 

Rights of a Foetus Under Indian Law 

Lack of Clarity: 

• The Indian Constitution does not explicitly articulate the rights of a foetus. 
• There is ambiguity whether a foetus possesses rights or mere “interests.” 

Court Decisions: 

• A 2009 Supreme Court decision reflected this ambiguity. 
• A 2016 Bombay High Court decision referenced international human rights law, concluding that a foetus lacks rights until birth, indicating the need for clarity in Indian laws. 

The Medical Termination of Pregnancy Act, 1971 

Legal Framework: 

• Provides the legal framework for making Comprehensive Abortion Care (CAC) services available in India. 

Conditions for Termination: 

• Up to 20 weeks of gestation under certain conditions: 
• Risk to the life of the pregnant woman or potential severe harm to her physical or mental health. 
• Significant risk that the child, if born, would have serious disabilities. 
• Pregnancy caused due to rape. 
• Pregnancy due to failure of contraceptives (originally for married women, expanded in 2021). 

Specifications: 

• Who can terminate a pregnancy. 
• Till when a pregnancy can be terminated. 
• Where a pregnancy can be terminated. 

Medical Termination of Pregnancy Amendment Act, 2021 

Two Stages of Termination: 

• Up to 20 weeks: Termination allowed with the opinion of one registered medical practitioner. 
• 20-24 weeks: Termination allowed under specific criteria and requires the opinion of two registered medical practitioners. 

Criteria for Termination: 

Within 20 weeks: 

• Risk to the life of the pregnant woman or grave injury to her physical or mental health. 

• Substantial risk of serious physical or mental abnormalities in the child. 
• Failure of any contraceptive method used by any woman or her partner. 

Inclusive Language: 

• The 2021 amendment replaced “married woman or her husband” with “any woman or her partner,” broadening the scope to include pregnancies outside of marriage. 

Presumed Grave Injury: 

• For pregnancies resulting from rape, presumed to cause grave injury to the mental health of the woman, both within 20 weeks and between 20-24 weeks. 

Who Can Terminate Pregnancy Between 20-24 Weeks? 

Section 3B of the Rules Under the MTP Act Lists Seven Categories: 

• Survivors of sexual assault, rape, or incest. 
• Minors. 
• Change of marital status during the ongoing pregnancy (widowhood and divorce). 
• Women with physical disabilities as per the criteria laid down under the Rights of Persons with Disabilities Act, 2016. 
• Mentally ill women including those with mental retardation. 
• Foetal malformation with substantial risk of being incompatible with life or severe physical or mental abnormalities. 
• Women with pregnancy in humanitarian settings or disaster or emergency situations as declared by the Government. 

Conclusion 

• The Supreme Court’s decision to deny the termination of a 27-week pregnancy underscores the complexities surrounding abortion laws in India.  
• The MTP Act and its amendments aim to balance the rights of the mother and the foetus, but there remains a need for clearer legal articulation regarding the rights of a foetus.  
• Understanding these legal frameworks and their implications is crucial for ensuring informed decisions and policies in the realm of reproductive rights. 

Mains Question: 

1. Examine the challenges and implications of the Medical Termination of Pregnancy (MTP) Act, 1971 and its amendments on women’s reproductive rights and foetal rights in India. (150 WORDS)