Open Access Research Article
RIGHT OF WOMEN TO ABORT WITH RESPECT TO SUBSTANTIAL FOETAL ABNORMALITIES: A CRITICAL ANALYSIS
Published Paper
Article Details
RIGHT OF WOMEN TO ABORT WITH
RESPECT TO SUBSTANTIAL FOETAL
ABNORMALITIES: A CRITICAL ANALYSIS
AUTHORED BY - DR. SUMER RIZWAN SHAIKH[i]
“Abortion is
advocated only by persons who have themselves been born”
(Ronald Reagan)
Introduction
The right of a pregnant woman to
terminate her pregnancy or abort the foetus has been the subject matter of
debate across the world. This right gives a woman the ultimate choice as to
whether to give birth to the child which she has conceived. India is 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.
While recognising the choice of the
woman the ultimate giver of life in this world, beyond the Omnipresent, such
cases highlight the severe dilemma that women undergo while taking a decision
to terminate her pregnancy. Courts are no exception in that Judges have to
grapple with issues that are not merely factual and legal but also involve
ethical and moral factors.
With the emergence of modern
technologies to detect abnormalities in an unborn child, the issues surrounding
termination and abortion are bound to become more and more complex. Such technologies coupled with the
unpredictability in ascertaining the degree of abnormalities, even by medical
practitioners, pose challenges to the manner in which society may grow in the
future.[ii]
Difference
between Pregnancy Termination and Abortion
The main difference between pregnancy
termination and abortion is the reasons why they happen. A termination is a
procedure that a woman chooses to have in order to end her pregnancy. The
abortion pill actually works by triggering the same processes that occur during
a miscarriage.
An abortion is a medical or surgical
procedure that usually takes place early in the pregnancy. Most abortions are
performed before 13 weeks, but it is legal to have a termination in the UK up
to 24 weeks. Pregnancies can be terminated with the abortion pill or a minor surgical procedure
to remove the contents of the womb. Women have abortions for many different
reasons. Sometimes it is necessary to protect the woman’s life or health. In
other cases, women may be worried about the impact on their emotional, social,
family or financial wellbeing.
The term miscarriage is used to
describe a pregnancy that ends before 24 weeks. Miscarriages can happen for
various reasons, such as injuries or pregnancy complications. However, in most
cases it isn’t possible to diagnose a specific cause. Sometimes it is just
impossible for the pregnancy to continue. The foetus may have had an
abnormality that was incompatible with life. It is usually impossible to
predict who will have a miscarriage and there won’t usually be any impact on future
pregnancies.[iii]
Object of the Study
The object of this paper is to study
the Right of Women to Abort with respect to Substantial Foetal Abnormalities interpreted through Judicial
Pronouncements.
Research Methodology
The researcher has adopted doctrinal
research method for present research. The doctrinal research involves the
analysis of the statutes, case laws, existing secondary information accessed from
various sources, e.g. books, articles, journals, websites etc.
Statement of Research Problem
The MTP Act, 1971 does not define as
to what constitutes an “Abortion” and what constitutes an “substantial foetal abnormalities” and thus
the Court is required to take the assistance of external material for interpreting
the said expression and allowing the Abortion without taking into consideration
the Right of Unborn irrespective of whether born normal or abnormal.
The definitions of the following
expressions in various statutes across jurisdictions are set out
below:-
|
S.
No.
|
Country/State Statute
|
Terminology
|
Definition
|
|
1.
|
Abortion Act, 1967 (United Kingdom)
|
physical or mental abnormalities as to be seriously handicapped
|
1(1)(d) That there
is a substantial risk that if the child
were born it would suffer
from such physical or mental abnormalities as to be seriously handicapped.
|
|
2.
|
Northern Ireland, The Abortion (Northern Ireland) (No. 2) Regulations
2020
|
Grounds for termination: cases with no gestational limit
Severe fetal
impairment or
fatal fetal
abnormality
|
7.—(1) A registered medical professional may terminate a pregnancy where two registered medical
professionals are of the opinion, formed in good
faith, that there
is a substantial risk that the condition of the fetus is such that—
(a)
the death of the fetus is likely before,
during or shortly after
birth; or
(b)
if
the child were
born, it would suffer
from such physical or mental impairment as to be seriously disabled.
|
|
3.
|
USA/Florida, Title XXIX Public Health, Chapter 390 Termination of Pregnancies
|
Fatal fetal
abnormality
|
means a terminal condition that, in reasonable medical
judgment, regardless of the provision of life-saving medical
treatment, is incompatible with life outside the womb and will result in
death upon birth or
imminently thereafter.
|
A perusal
of the above definitions would show that some of the definitions are extremely broad and
wide, whereas, others are narrow and constricted.
The question as to what would constitute “substantial
foetal abnormalities” is, thus,
dependent not only upon the medical conditions of the foetus, but also, on the broad public policy of the
particular State or Country.
Illustratively, the following decisions
delivered after the enactment of the 2021 Amendment, have been
considered by the Court:
|
S.No.
|
Case Name
|
Period of Gestation
|
Medical Condition/Abnormality
|
Decision
|
|
1.
|
Roshni Ashik Khan
v. State of Maharashtra &Anr. [W.P.(L) 18582/2021,
decision dated
26th August,
2021]
|
33 weeks
|
Serious neurological and skeletal abnormalities in form of ‘Gros
Hydrocephalus, small compressed posterior fossa with spina bifida
and large
meningomyelocoele with
a
tethrered spinal cord (Arnold Chari
alformation II_ and
bilateral clubfoot’.
|
Termination of pregnancy permitted.
|
|
3.
|
Smt. Nivedita Basu
v. The State
of West Bengal &Ors. [W.P.A.
2513/2022,
decision dated 17th February,
2022]
|
34 weeks,
6 days
|
Open spina bifida (lumbosacral myelomeningocele) with lemon sign (Arnold Chiari malformation)
and severe
ventriculomegaly
(hydrocephalus).
|
Termination of pregnancy permitted.
|
|
2.
|
Pratibha Gaur
v. Government of NCT of Delhi &Ors. [W.P.(C) 14862/2021, date of
decision 31st December, 2021]
|
28 weeks
|
Tetralogy of Fallot (TOF)
with absent pulmonary valve (APV). The
disease includes a hole in the heart
(Ventricular Septal
Defect, VSD) along with poorly developed valve that guards
the blood vessel taking blood from right
side of the heart (right ventricle) to lungs which
leads to both
obstruction & leaking of valve.
The blood vessels of the lungs
(pulmonary arteries) are usually grossly enlarged. In addition to the heart
disease, the patient may also have associated airway
problems that may lead to requirement of respirator support
in one-third of cases with
in first year of life.
TOF with APV does not have impact
on immediate
post-natal survival.
|
Termination of pregnancy permitted.
|
|
4.
|
Neethu Suhas&Ors. v. State of
Kerala, Represented by Secretary, Department of Women & Child Development &Ors. [W.P.(C) 20872/2022,
Date of decision 1st July, 2022]
|
33 weeks.
|
Distension of
the stomach and
a dilated proximal duodenum, suggesting obstruction at the level of the
distal duodenum suggestive of atresia/ stenosis. Along with this, there
is growth restriction (EFW at 3 centile
– 28 weeks 4 day) and renal
findings. Foetal dopplers are normal with high resistance in the mean uterine artery
Doppler.
Collective findings point
to an increased possibility
of
chromosomal abnormalities like Down's syndrome in around 30%
of cases.
Also reported association with some genetic syndromes which may be
evident only postnatally.
|
Termination of pregnancy permitted.
|
An overall
analysis of the judicial decisions mentioned above would show that Courts have
permitted termination of pregnancy even at an advanced stage i.e., even in the
ninth month if substantial foetal abnormalities are detected in the foetus. But
in all the above cases, the Medical Board gave an opinion in favour of termination of the pregnancy.
But in Shahishtha and Others V. The State, 2022 SCC OnLine Kar 1596[iv]
The Karnataka High Court stated that “It is shocking that an agreement is
entered into between the parties in respect of an “unborn child”. It is for the
District Child Protection Unit to take the responsibility of all such cases. It
is well settled that ‘an unborn child has a life of its own and rights of its
own and the rights of unborn are recognised by law. No doubt, only if the
unborn can be treated as a person, the right to life of the unborn can be
equated with the fundamental right of the mother guaranteed under Article 21 of
the Constitution. True, an unborn is not a natural person, but it is well known
that after six weeks, life is infused into the embryo, thus converting embryo
into foetus and once an embryo evolves into a foetus, the heartbeat starts. In
other words, the unborn has life from the stage it transforms into foetus. If
the unborn has life, though it is not a natural person, it an certainly be
considered as a person within the meaning of Article 21 of the Constitution,
for there is absolutely no reason to treat an unborn child differently from a
born child. In other words, the right to life of an unborn shall also be
considered as one falling within the scope of Article 21 of the Constitution of
India’.”
Most recently the Kerala High Court in
XXX
v Union of India,2024 Permits Termination Of 27 Weeks Pregnancy Citing
Foetal Abnormalities But Says Parents Will Be Responsible If Child Born Alive.[v]
Relying upon the Apex Court decisions
in K.S.Puttaswamy
v. Union of India (2017), Suchita Srivastava v. Chandigarh
Administration (2009), X v. Principal Secretary, Health and Family
Welfare Department, Government of NCT of Delhi (2022), the Court stated
that reproductive autonomy is an integral part of the right to personal liberty
and privacy under Article 21 of the Constitution. In XYZ v State of Gujarat (2023),
the Apex Court ruled that a woman alone has the right over her body and she is
the ultimate decision maker on abortion.
In the facts of the case, the Court
constituted a Medical Board consisting of seven doctors that examined the
petitioner and the foetus. The Court observed that the child could develop
significant and permanent foetal anomalies. It thus permitted the petitioner to
undergo medical termination of pregnancy.
However, the Court ruled that since
the petitioners are a married couple who opted for a voluntary pregnancy and
the foetus in its 27th week of gestation, they cannot evade from their
responsibility if the child is born alive. It added,
“If the foetus is found to be alive
at birth, the hospital shall give all necessary assistance including incubation
either in that hospital or any other hospital where incubation facility is
available in order to ensure that the foetus survives. Further, the baby is to
be offered the best medical treatment available so that it develops into a
healthy child. The petitioners shall take full responsibility of the baby,
offer best medical treatment and rear the child in its best interest.”
Accordingly, the Court disposed of
the petition allowing medical termination of pregnancy.
Conclusion:
In India, judicial precedents have
supported the rights of women to abort/medically terminate the pregnancy,
depending upon the gestational period, the medical condition of the foetus, the
physical and mental health of the woman, and other such factors.
But the very important law which
governs the whole universe is the God made laws provided through its religious
holy books and one such is the Holy Quran which says through :-
SURAH AL-ISRA AYAT 31
“And do not kill your children for
fear of poverty. We provide for them and for you. Indeed, their killing is ever
a great sin.”
SURAH AL-AN’AM AYAT 151
Say, “Come, I will recite what your
Lord has prohibited to you. [He commands] that you not associate anything with
Him, and to parents, good treatment, and do not kill your children out of
poverty; We will provide for you and them. And do not approach immoralities –
what is apparent of them and what is concealed. And do not kill the soul which
Allah has forbidden [to be killed] except by [legal] right. This has He
instructed you that you may use reason.”
SURAH TAKWIR AYAT 8
“And when the girl-child buried alive
shall be asked”
Therefore from the above said
religious laws it is clear that though whatever may be the reason the Unborn
should not be killed/Aborted/terminated.
[i] Assistant Professor, M.C.E. Society’s A.K.K. New Law Academy & Ph.D.
(Law) Research Centre, Pune-411001.
[ii] modern technologies to detect abnormalities in an unborn
child. (n.d.). Retrieved August 28, 2024, from
https://www.verdictum.in/pdf_upload/pms06122022cw166072022151751-1445131.pdf
[iii] Miscarriage, D. B. P. T. A. (n.d.). Difference
Between Pregnancy Termination and Miscarriage | 132 Healthwise. Retrieved August
28, 2024, from
https://www.132healthwise.com/difference-between-pregnancy-termination-and-miscarriage.php
[iv] 2022 SCC OnLine Kar 1596
[v] Jolly, T., & Law, L. (2024, August 28). Live Law.
Live Law. Retrieved May 9, 2024, from
https://www.livelaw.in/high-court/kerala-high-court/kerala-high-court-terminate-pregnancy-27-weeks-foetus-disabiled-mtp-act-257232
Article Information
RIGHT OF WOMEN TO ABORT WITH RESPECT TO SUBSTANTIAL FOETAL ABNORMALITIES: A CRITICAL ANALYSIS
Authors: DR. SUMER RIZWAN SHAIKH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/09/06
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.