New Delhi: The Supreme Court on Thursday sought the response of the Centre and Maharashtra government on the plea of a rape victim seeking permission to terminate her 24-week-old foetus which suffered from anencephaly, which means abscence of major portion of brain, scull and scalp.
A three-judge Bench of Justices J.S. Khehar, Kurian Joseph and Arun Mishra issued notice on the writ petition filed by the victim, who did not want to reveal her identity.
She said her doctors did not allow her abortion stating that the foetus is more than 20 weeks old and termination of pregnancy is prohibited under the Medical Termination of Pregnancy Act, 1971, even if there is fatal risk to the mother and the foetus.
As senior counsel Colin Gonsalves pleaded for an urgent hearing, the Bench sought the response by Friday and asked the counsel to serve a copy on the Attorney General and counsel for the State of Maharashtra. It directed the case to be listed for further hearing on Friday. The Bench indicated that it will seek a medical report before passing any order.
In her petition she said 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 her fiancée. When she came to know that she was pregnant she underwent tests and sonography revealed that the foetus suffered from anencephaly.
She contended that 20 weeks ceiling may be reasonable when the law was enacted in 1971 but has ceased to be reasonable today when 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 foetal 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, harsh and discriminatory and violative of Articles 14 and 21 of the Constitution.
This petition also violates 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, harsh and discriminatory.
The trauma involved in delivering a foetus with abnormalities is today not concerned ground enough for abortion post 20 weeks under section 5. She contended that the MTP Act violates her rights to personal liberty and privacy, guaranteed by the Indian Government and International law.
She has to undergo physical and emotional trauma by denying her an abortion and to continue with the pregnancy and deliver a child when her foetus was diagnosed with Anencephaly. Hence she prayed that the section be struck down as unconstitutional.