‘What are the rights of foetus…?’: Delhi HC asks lawmakers, allows minor rape survivor to end 27-week pregnancy

“What are the rights of the foetus once it attains viability? The Medical Termination of Pregnancy (MTP) Act is silent on it. It is observed that with the increasing number of cases seeking termination of pregnancy beyond the statutory limit, the question of foetal viability has assumed considerable importance in abortion jurisprudence,” read the order.

While dealing with the case, the court took note of the opinion of a medical board constituted by the Dr Baba Saheb Ambedkar Hospital in Rohini that the foetus may be born alive even if caesarean termination is carried out.

The minor, through her mother, had sought the High Court’s order to terminate the pregnancy as it had exceeded the statutory 24-week limit prescribed under the MTP Act, 1971, citing her right to life and that continuation of the pregnancy shall cause grave mental injury upon her as she is a rape victim.

In its order, the High Court noted, “The mental and physical well-being of the victim, who has already endured cruelty at the hands of the perpetrators, must outweigh the mere probability of the foetus being born alive, which the medical experts themselves have noted as uncertain.” The court considered the “plight” of the survivor, “a minor child who has conceived under the agony of fate.”

Noting that the 24-week cut off limit under MTP Act is not regarded as inflexible and courts have often intervened on a case-to-case basis, allowing termination especially when it poses risk to the life, health and dignity of the woman, the HC underlined, “The State cannot, consistent with constitutional guarantees, compel a woman to undergo physical or mental trauma solely for the preservation of unborn life. Any such compulsion would, in effect, render her fundamental rights nugatory and subordinate to rigid biological benchmarks.”

“From the judicial precedents, it is discernible that where the life or health of the woman is endangered, her rights are paramount. What is the position in law as regards the rights of a viable foetus which, if delivered, may be born alive? This issue warrants attention. While constitutional courts have, in the absence of legislative clarity, sought to balance competing interests through case-specific adjudication. However, the absence of a clear statutory framework leaves the matter unsettled,” the High Court observed, noting the absence of a legislative framework in this aspect.

Justice Monga reasoned, “She (The survivor) requires greater protection at present than the uncertain possibility of preserving a foetus that may not even survive. It is also noted that medical terminations between 24 to 28 weeks of gestation ordinarily result in the foetus being stillborn, though exceptions may exist…this Court is of the opinion that continuation of the pregnancy would permanently scar her psyche and cause grave and irreparable harm to her physical and mental health.”

While directing the hospital to carry out the termination, the High Court, however, added a caveat that “during the procedure, if the attending doctors form the opinion that there is a serious risk to the life of the petitioner, they shall have full discretion to withhold or cancel the termination procedure.”

In case the child is born alive, the court added, the hospital shall ensure that all possible and feasible medical assistance is extended to the child, and the Child Welfare Committee shall take necessary steps.

Notably, in July, All India Institute Of Medical Sciences Delhi appealed against a single-judge’s order allowing termination of a 27-week pregnancy of another minor rape survivor. A division bench had stayed the single judge’s order, while adding that the court cannot be a party to foeticide.

From the homepage

SC on amended Waqf Act: What has been stayed, what remains

Congress seeks 70 seats in Bihar, of these 27 are ‘good’ by its yardstick

‘Despite pleading, she purposely took us to a small hospital far away’: Wife of Finance Ministry officer killed in BMW accident to cops; driver arrested