Right over her body
Though the law does not permit abortion after 20 weeks, upholding a Kolkata woman's right to choose, the Supreme Court on Monday allowed a woman to abort her over 20-week-old foetus with severe abnormalities. Not only that, while dictating the order in an open court, the double-judge Bench categorically took note of the stress suffered by the petitioner. The right of a woman to have a reproductive choice was part of personal liberty, the Bench observed in the order. The court said every woman had the sacrosanct right to bodily integrity. It allowed the abortion to be conducted at a Kolkata hospital. The petitioner had approached the Supreme Court seeking permission to abort her foetus after she discovered that it suffered from a severe form of cardiac impairment called pulmonary atresia. She had also submitted to the court a report by paediatric pulmonologist, which said there was a high possibility of permanent brain damage.
On June 24, the court wanted to stretch the law on abortion that would allow termination of pregnancy beyond 20 weeks if the foetus suffered from severe abnormalities. It had referred the present case to a Medical Board for an expert opinion. The petition stated that of the 26 million births that occur in India every year, approximately 2-3 per cent of the foetuses had severe congenital or chromosomal abnormality. Many suffered Intrauterine Foetal Death (IUFD). It was possible to detect certain abnormalities before 20 weeks, but some could be detected only after that period. The Supreme Court's decision whether a woman should be allowed to abort or not after the 20 weeks period has been on a case-to-case basis.
The primary factor that has guided its decisions has been the expert opinion of a court-appointed medical board on the risk it poses to the mother and the child. Medical Termination of Pregnancy Act of 1971 bars abortion if the foetus has crossed the 20-week mark. An exception to the law is made if a registered medical practitioner certifies to a court that the continued pregnancy is life-threatening for the mother or the baby. In May this year, the court refused the plea of an HIV-positive rape victim, a destitute from Patna, to abort her 26-week-old foetus after the medical report concluded that the abortion would be risky to both the woman and the child. Instead, the court ordered the Bihar government to pay the 35-year-old a compensation of Rs 3 lakh.
The Patna High Court had earlier rejected the woman's plea to abort, saying the State had a compelling responsibility to keep the child alive. In one such case, the court had allowed a 22-year-old Mumbai woman to terminate a 24-week pregnancy after doctors said the foetus was malformed. In one such petition said: "it is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected". It was this petition which was quoted by the Supreme Court on Monday in the order allowing the Kolkata woman to abort her abnormal foetus.
