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ACKNOWLEDGING its dilemma when the question pertains to “life versus life”, the Supreme Court Monday allowed an alleged rape survivor to terminate her pregnancy beyond the law-mandated 20 weeks after noting that the woman’s life was in danger.
This is the first such decision by the top court, when it has given the benefit of an exceptional provision in the law after the Medical Termination of Pregnancy Act of 1971 put a ceiling of 20 weeks for an abortion.
A bench of Justices J S Khehar and Arun Mishra granted the benefit of Section 5 in the Medical Termination of Pregnancy Act, 1971, which allows abortion even after 24 weeks if there is a threat to the life of the mother.
The Mumbai-based woman, in her petition that was argued by senior lawyer Colin Gonsalves, had stated that she was raped by her ex-fiance on the false promise of marriage and became pregnant.
“The medical board has opined that the continuance of pregnancy would gravely endanger the physical and mental health of the mother. We are satisfied with the diagnosis and it is permissible to terminate the pregnancy as per Section 5 of the Medical Termination of Pregnancy Act, 1971. We grant liberty to the petitioner and if she desires to terminate the pregnancy, she is permitted,” said the bench.
During the hearing, the apex court remarked that it is always perplexing when a decision is to be taken regarding abortion of a foetus beyond 20 weeks since medically, the foetus has a life. “It then becomes life versus life. Abuse (of legal provision to terminate) is also a problem,” observed the bench as Attorney General Mukul Rohatgi submitted that abortion after the foetus has a life has many dimensions.
Representing the central government, Rohatgi cited the provision in the Act that permitted a woman to abort the foetus if two doctors opine that there is a threat to her life because of the pregnancy.
“If there is risk to the mother’s life then the law does not prohibit. If you have to save the life of the mother then you can cross the restriction of 20 weeks. The issues involved, however, are much larger than this case. Female foeticide is one of these problems,” said the AG, while agreeing with the recommendations of a medical board that in this case, the woman should be allowed to abort.
Constituted on the order of the court, the medical board, which comprised seven doctors of Mumbai’s KEM Hospital, had opined that there were multiple congenital anomalies in the foetus – the baby may be born without parts of the brain and skull. Besides, the report said, there were grave risks to the mother’s life which could be averted by letting her abort the foetus.
The bench accepted this report and said it is permissible for the woman to terminate her pregnancy under medical advice and supervision. Earlier, the doctors had refused to abort the foetus, citing Section 3 of the Act that restrained it after 20 weeks.