“No woman can call herself free who does not control her own body.”
—Margaret Sanger, American activist
In a significant ruling, the Delhi High Court while recognizing the ultimate choice of the mother to decide whether to give birth to the child or not, as also, the possibility of a dignified life for the unborn child, allowed a woman to terminate her 33-week-old pregnancy. Justice Prathiba M Singh was dealing with a plea moved by a 26-year-old woman seeking termination of the pregnancy at 33 weeks gestational age on account of foetal abnormality.
The woman approached the Court contending that she was undergoing regular ultrasounds since the inception of the pregnancy and was not informed of any abnormalities. It was only during a test conducted at a much later stage that the foetus was found to be suffering from cerebral abnormality. The woman approached the Court when the Guru Teg Bahadur Hospital asked her to approach the Court seeking permission for termination of pregnancy owing to the advanced stage of pregnancy.
It is pertinent to mention that the Medical Termination of Pregnancy Act, 1971, is a legislation dealing with termination of certain pregnancies by registered medical practitioners in the country and specifies requirements to be fulfilled for terminating a pregnancy, including the persons who are competent to perform the termination procedure, circumstances when abortion is permissible, and places where the procedure may be performed.
A crucial amendment was brought into the Act in 2021 by way of which the upper gestational limit for terminating pregnancies under “certain specified conditions” was increased from 20 weeks to 24 weeks, with the approval of two registered medical practitioners. Section 3 of the Act provides for circumstances where pregnancies can be terminated by registered medical practitioners. Section 3(2)(a) permits the termination of a pregnancy which does not exceed 20 weeks, with the opinion of one registered medical practitioner, while Section 3(2)(b) permits the termination of a pregnancy, where the length of the pregnancy is between 20 and 24 weeks with the opinion of not less than two registered medical practitioners, of such categories of women as prescribed by the rules attached to the law.
Section 3(2B) of the Act relaxes the condition of length of pregnancy for the purposes of termination as provided under Section 3(2) in cases where the said termination is necessitated by the diagnosis of “substantial foetal abnormalities”. The woman’s case was that the 24-week limit is not applicable in her case since the foetus borne by her carries substantial cerebral abnormalities.
Acknowledging the severe dilemma that women undergo while taking a decision to terminate the pregnancy, the Court allowed the woman to terminate her pregnancy, while noting: “the ultimate decision in such cases ought to recognize the choice of the mother, as also, the possibility of a dignified life for the unborn child. Keeping in mind these two factors, the Court came to the conclusion that the mother’s choice was made in a completely bona fide manner. There is considerable doubt and risk involved in the unborn child’s chances of leading a dignified and self-sustaining life, based upon the medical evidence and reports.” The Court, however, made it clear that the woman shall undergo the medical termination of pregnancy at her own risk and her informed consent shall be obtained.
The verdict was delivered once the Court gauged the mental trauma affecting the parents as well as their economic and social conditions, and was convinced that the woman was taking an informed decision to terminate her pregnancy after weighing all factors. The Court had earlier constituted a medical board at Lok Nayak Jai Prakash Narayan Hospital to make an assessment on the abnormalities and the feasibility of termination of the pregnancy. The Court remarked that since the medical board constituted was unable to predict or give a categorical opinion as to the degree of handicap or as to the quality of life of the child after birth, with certainty, such unpredictability and risks ought to weigh in favour of the woman seeking termination of pregnancy.
“The opinion of the Medical Board in cases of termination of pregnancy is of considerable importance for assistance of the Courts. Such opinions cannot be sketchy and fragmented. They ought to be comprehensive in nature. In such cases, speediness coupled with qualitative reports is of utmost importance,” observed Justice Singh. The Court went on to enumerate certain “standard factors” on which the opinion should be given by medical boards, which included explaining in layman’s term the effect of the medical condition of the foetus; interacting with the woman in a congenial manner and assessing her physical and mental condition; mentioning the risks involved for the woman in either continuing the pregnancy or undergoing termination.
The Delhi High Court ruling contrasts with the United States Supreme Court decision in Dobbs vs Jackson Women’s Health Organization wherein the Court overturned its earlier landmark 1973 Roe vs Wade decision that established the constitutional right to termination of pregnancy. With the recent decision, each individual state is enabled to pass its own legislation on whether to permit or restrict abortions.
The right of a woman to make reproductive choices is a subject matter of debate across the globe. Laws regarding abortion are diverse and vary across nations. While abortion is illegal in as many as 24 countries, which include Andorra and Malta in Europe, El Salvador and Honduras in Central America, Senegal and Egypt in Africa, and the Philippines and Laos in Asia, in most other countries, it is permitted with certain restrictions.
There are also certain countries where access to abortion is subject to extremely restrictive conditions. For instance, in countries such as Libya, Iran, Indonesia, Venezuela, abortion is permitted only when the woman’s health is at risk. In Brazil, for example, abortion is illegal except in cases of rape, risk to the life of the mother or severe foetal abnormality. These circumstances are quite common and found in many countries’ abortion laws.
On the other hand, in countries like Japan, Canada, Russia as well as most of Europe, women can safely access abortion up to a certain gestational limit—12 weeks being the most common. For instance, in Russia, abortion is completely legal up to 12 weeks, but can be terminated up to 22 weeks in cases of rape and at any point if the pregnancy threatens the life of the mother. In the United Kingdom, there is a 24-week limit on abortion, but if the foetus has any disability, the pregnancy can be terminated right up until birth. In 2020, New Zealand decriminalized abortion and extended the legal period to 20 weeks of pregnancy.
India is also amongst the countries that recognises this choice of the woman in its law and has even expanded this right in recent times with amendments permitting termination at an advanced stage under various circumstances. Recently, the apex court in X vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr, while declaring that all women are entitled to safe and legal abortions and any discrimination on the basis of marital status is unconstitutional, reaffirmed the right of women to exercise bodily autonomy. “It is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion,” the top court held.
This shows that most countries have adopted a more nuanced approach in relation to abortion laws and are in favour of liberalizing their abortion laws to encompass an interpretation of fundamental rights which is based upon the realities faced by women and a vision of meaningful equality.
—By Banshika Garg and India Legal Bureau