Delhi HC recalls order allowing widow to terminate pregnancy

On January 4, the HC had permitted the termination of pregnancy after noting that the woman had lost her husband on October 19, 2023, and had found out about her pregnancy on October 31. The woman had decided not to continue with her pregnancy in December.

The HC had observed that her psychiatric evaluation indicated she was suffering from “extreme trauma” due to her husband’s death. It opined that continuing the pregnancy could “impair her mental stability as she is showing suicidal tendencies”.

The Centre then filed a plea asking the HC to recall its order, saying it is “imperative” for the court to “consider protecting the right to life of the unborn child so that the child has a fair chance of survival”. The Centre had referred to the Supreme Court’s judgment of October 16, 2023, where it had recalled its earlier order allowing termination of a 26-week pregnancy.

After the January 4 order, AIIMS had also filed an application seeking necessary instructions, saying that a review meeting held on January 13 found it “advisable” to continue the pregnancy “for another 2-3 weeks for the betterment of the health of the mother and the child”.

On Tuesday, the HC said the Union Ministry of Health and Family Welfare’s guidelines of August 14, 2017, provide for termination of pregnancy “beyond 20 weeks in case of minor children who are victims of rape and had approached the court or where the foetus showed abnormalities.”

“A perusal of the guidelines shows that the medical board which examines the patient has the responsibility to determine if the foetal abnormality is substantial enough to qualify as either incompatible with life or associated with significant morbidity or mortality in the child if born, and unless such abnormalities are shown, foeticide cannot be permitted. In the present case, no such circumstances exist, and therefore, the said guidelines cannot be pressed for permitting foeticide,” Justice Prasad said.

The HC also took note of medical reports filed by AIIMS which, it said, indicated that a “preterm induction of labour has a high chance of failure

and may lead to caesarean section which may have serious implications on her future pregnancies”.

The reports also indicate that a child born after preterm induction of labour can have physical and mental deficiencies which will have “drastic effect” on the child’s future and the NICU-ICU care in such cases is about 30-45 days with “reasonable risk of physical and mental handicap of the newborn”, the HC said.

“The judgment dated 04.01.2024 is hereby recalled,” Justice Prasad said. The woman, if so advised, can go to AIIMS, and it is for the medical board to decide how they want to go ahead with the delivery at the appropriate time, the court said.

The HC further said it is for the petitioner to decide “where the delivery” will take place, adding that the Centre or the state government would “bear all medical expenses and incidental charges of the delivery”, depending on whether she goes to a central or state hospital.

It said that if the petitioner wanted to give the child up for adoption, the Union government would aid the process.