The Delhi High Court on Thursday directed the All India Institute of Medical Sciences (AIIMS) to constitute a medical board to examine the feasibility of terminating pregnancy of a woman who is 25 weeks pregnant and wants an abortion as the foetus suffers from enlarged kidneys and may not survive.
The woman, in her plea, has also challenged the constitutional validity of the provisions of the Medical Termination of Pregnancy Act, 1971 which prohibits abortion after 20 weeks of pregnancy, saying the stipulation has ceased to be reasonable today when technology has advanced and fails to recognise the physical and mental trauma involved in delivering a foetus with severe abnormalities.
A bench of Chief Justice D N Patel and Justice C Hari Shankar asked AIIMS here to set up a four-member board, which would also include a psychiatrist, to examine the health of the foetus and the mother and submit a report before the court by July 9 on whether it was advisable to terminate the pregnancy.
The plea, filed through advocate Sneha Mukherjee, said, "This challenge is to the effect that the 20 weeks stipulation for a woman to avail abortion services under section 3(2) (b) of the Act may have been reasonable when the section 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 at any point during the entire period of pregnancy.
"Secondly, 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 foetal abnormality after the 20th week have to suffer excruciating pain and agony because of the deliveries that they are forced to go through," the plea said.
The ceiling of 20 weeks is therefore "arbitrary, harsh, discriminatory and violative of Articles 14 and 21 of the Constitution of India", the petition has contended.
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The plea has also challenged section 5 of the Act to the extent it states that the termination of a more than 20-week pregnancy be permitted only if it was immediately necessary to save the life of the mother.
It has contended that this section was "unconstitutional", as it does not take into account the problem of severe foetal abnormalities discovered after the 20th week and also does not recognize the physical and mental health and well being of the woman as being part of the expression 'life'.
"The physical and mental trauma involved in delivering a foetus with severe abnormalities is today not considered ground enough for abortion post 20 weeks under section 5 of the Act," the petition has said.
The plea has said that in the instant case, the denial of an abortion to the woman, due to provisions of the Act, "has caused her extreme anguish and has forced her to continue her pregnancy while being aware that the foetus may not survive".
It has claimed that "as written, the MTP Act encourages desperate women, who learn about a foetal abnormality after the 20th week, to seek out unsafe abortions from untrained medical personnel".
Illegal abortions are the third leading cause of maternal death in India and account for 13 per cent of maternal deaths worldwide, the petition said.
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