Maharashtra woman moves Supreme Court to abort abnormal 24-week-old fetus

New Delhi, July 2016: The Supreme Court on Thursday sought the response of the Centre and Maharashtra government within 24 hours over a rape survivor's distress plea to abort her 24-week pregnancy citing serious abnormalities with the fetus.

Identifying herself as 'Miss X' because of the social stigma attached to rape and unwed motherhood, the petitioner said she came from a poor background and the pregnancy was caused by rape on the promise of marriage by her fiancé who then deserted her and married another woman. She has filed rape charges against the man.

She said she continued to suffer excruciating mental agony as the pregnancy resulted from rape and the fetus had serious abnormalities with slim chances of surviving the full term. Hospitals refused to terminate the pregnancy as it was beyond the legally permissible 20-week period, leading her to move the SC.

The case is somewhat similar to that of a minor rape victim from Gujarat who moved the SC in July 2015 seeking termination of pregnancy even though the fetus was more than 20 weeks. In the case, the SC said a decision could be taken on the basis of a medical evaluation whether the fetus posed a threat to her health and if she was psychologically ready to be a mother. Following the medical report, the pregnancy was terminated.

In the case of 'Miss X', the plea cited abnormalities in the fetus as well as trauma from the alleged rape with the pregnancy being the result of a deception on the part of her former fiancé. In her case, the abnormality was revealed after the legally permissible period for abortion, she said.

The Medical Termination of Pregnancy Act, 1971 permits a woman to terminate her pregnancy till 20 weeks if two registered practitioners express unanimous opinion that continuation of pregnancy would threaten the mother's life or the fetus has severe abnormalities.

Challenging the constitutional validity of Section 3(2)(b) of MTP Act that imposes a 20-week restriction on abortion as a violation of woman's fundamental right, her counsel Colin Gonsalves told the court that continuance of pregnancy despite knowing that the fetus had severe abnormalities was a violation of her fundamental right to life.

A bench comprising Justices J S Khehar, Kurian Joseph and Arun Mishra acted with alacrity and issued notices to the Union and Maharashtra government with a 24 hour deadline. The bench also assured the woman that it would like to take the opinion of a medical board on the health of the fetus before taking a decision on her plea for immediate termination of pregnancy.

The petitioner said because of the legal ban on termination of pregnancy after 20 weeks, those who detected severe abnormality of the fetus after 20 weeks generally sought unsafe abortion from untrained medical personnel putting their lives at risk.

"Illegal abortions are the third leading cause of maternal death in India and account for 13% of maternal deaths worldwide," she said.

Quoting a news report of September 2008, the petitioner said, "The government MTP Committee report from health secretary Naresh Dayal and former director of Indian Council of Medical Research Dr N K Ganguly favoured increasing the time limit for legal abortion from 20 weeks to 24 weeks, but no such report was ever made public."

The petitioner also cited a recent proposal from National Commission for Women for amendment of the MTP Act to provide for abortion where "pregnant woman is minor, pregnancy is result of rape or incest, pregnant woman is physically or mentally challenged, continuance of pregnancy would involve risk to the mother, fetus suffering grave abnormalities".

She said countries like Albania, Australia, Belgium, Canada, China, Croatia, Denmark, Israel, Nepal, Netherlands, South Africa, the UK and the US "do not include absolute time limits in their abortion laws. Instead, these countries consider the woman's physical and mental health and doctors' expert opinion in determining whether a medical termination of pregnancy can be performed post 20 week period". ET Health World