A plea was moved in the Delhi High Court on Tuesday challenging the constitutional validity of a law that prevents abortion of foetus that is more than 20 weeks old, except where the mother's life is at risk.
The petition was moved by a 22-year-old woman who has sought termination of her over 22-week pregnancy on the grounds that the foetus was not viable as it has severe deformities and carrying it would also affect her physical as well as mental health.
She has challenged the restriction on abortion in the Medical Termination of Pregnancy Act, contending that it does not provide for severe fetal abnormalities discovered late in pregnancy and the physical and mental health of a pregnant woman.
A bench of justices S Ravindra Bhat and Prateek Jalan on Tuesday set up a medical board of doctors, that includes a psychiatrist, from AIIMS to assess the viability and condition of the foetus and also the woman's mental health in view of the complication in her pregnancy.
The court asked the medical board to give its report by December 17, the next date of hearing.
The woman, in her plea filed through advocate Sneha Mukherjee, has contended that the restriction in the Act, limited to the phrase -- the termination of such pregnancy is immediately necessary to save the life of the pregnant woman -- was "unduly restrictive and is arbitrary, harsh, discriminatory and violative of Articles 14 and 21 of the Constitution".
"The present interpretation by government hospitals and practitioners is that the abortion services can only be provided after 20 weeks in circumstances where, if the abortion is not done, the woman would surely die.
"This section is unconstitutional, firstly, because it does not provide for severe foetal abnormalities discovered after the 20th week and secondly, it 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," the plea said.
The petition contends that the petitioner in the instant case has "suffered immense mental and physical anguish as a result of the unreasonable 20-week restriction under the Medical Termination of Pregnancy (MTP) Act.
It said that the abnormalities were detected during a level II ultrasound which showed that the foetus suffered from hydrocephalus, short spine and other deformities.
"The denial of her right to an abortion has caused petitioner extreme anguish and has forced her to continue her pregnancy while being aware that the foetus may not survive," the plea said.
Hydrocephalus is a medical condition in which there is an abnormal accumulation of cerebrospinal fluid (CSF) within cavities in the brain and would lead to swelling of the head of the infant.
The plea has said that where women do not have access to adequate antenatal care which could detect such abnormalities before the 20 week of pregnancy, they end up suffering severe mental anguish and trauma as they are forced to to carry a foetus that may not survive.
"Although the MTP Act has provisions for protecting a woman's physical and mental health, the 20-week restriction causes women extreme physical and mental trauma. As such, judicial intervention is necessary to redress the continuous human and fundamental rights violations experienced by the petitioner," the petition has said.
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