Supreme Court to review ceiling on abortions today

New Delhi: The Supreme Court will examine on Thursday whether abortion can be permitted after 24 weeks pregnancy when the Medical Termination of Pregnancy Act, 1971 (MTP) restricts abortion to the ceiling of 20 weeks, even if the foetus is found to suffer from abnormalities and continuing her pregnancy will be fatal.

A Mumbai-based wo-man, who did not want to reveal her identity, has in a writ petition challenged the provisions of MTP Act to the extent that it restricts abortion of foetus upto 20 weeks.

A Bench headed by Justice Anil Dave posted the matter for hearing on Thursday on a mention made for urgent listing of the writ petition seeking to declare as unconstitutional the MTP provisions.

In her petition she said that she came from a poor family. She was raped by her fiancé on the promise of marriage but he abandoned her and married another girl. She had already registered a case of rape against him.

When she came to know that she was pregnant she underwent medical tests and sonography revealed that the foetus suffered from anencephaly, a fatal condition. Her request for an abortion on June 2, 2016 was denied by her doctor on the grounds that she was past the prescribed period of 20 weeks within which she could undergo a Medical Termination of Pregnancy. Hence the present writ petition.

She contended that 20 weeks ceiling may be reasonable when the law was enacted in 1971 but has ceased to be reasonable today where technology has advanced and it is perfectly safe for a woman to abort even up to the 26th week and thereafter.

Further determination of foetal abnormality in many cases can only be done after the 20th week and by keeping the ceiling artificially low, women who obtain reports of serious abnormality after the 20th week have to suffer excruciating pain and agony on account of the deliveries that they are forced to go through. The ceiling of 20 weeks is therefore arbitrary and discriminatory and violative of Articles 14 and 21.

This petition also impugnes the constitutional validity of section 5 of the Act limited to the phrase “the termination of such pregnancy is immediately necessary to save the life of the pregnant woman” on the ground that this clause is unduly restrictive and is arbitrary. The physical and mental trauma involved in delivering a foetus with severe abnormalities is today not concerned ground enough for abortion post 20 weeks under section 5.