Written by Neena Nagare
A woman in her 20s after a split with her partner has requested for medical termination of her almost 24 weeks old pregnancy.
A divisional bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad suggested that since the petitioner has passed a significant period of her pregnancy duration it would be healthier for her to consider delivering the child and giving it in adoption.
” Why are you killing the child? There are big queue for adoptions…We are not forcing her (Petitioner) to raise the child. We will ensure that she goes to a good hospital. Her whereabouts will not be known. You give birth and come back.”
Legally, a woman can terminate her pregnancy after 20 weeks only under certain circumstances specified underThe Medical Termination of Pregnancy (Amendment) Act of 2021.
Section 3(2)(b) of the Amendment Act provides that a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy exceeds 20 weeks but does not exceed 24 weeks in case of vulnerable women (including rape victims), if not less than two registered medical practitioners are of the opinion that— (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Thus, the section provides that where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the torment caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
The counsel on Petitioner’s behalf pursued resort under Sec 3(2)(b). He mooted that the petitioner being an unmarried single woman doesn’t have the physical, economic and mental strength to have a child.
Hearing this, the Chief Justice orally asserted,
” We can’t kill the child. Law doesn’t permit us…She carried the child for 24 weeks. Why not 4 more weeks?”
The State opposed the petition, arguing that Section 3(2)(b) is not applicable to the Petitioner.
He indicated that the Act regards various circumstances under which a woman may seek termination of pregnancy and includes circumstances where termination may be permitted even post 24 weeks. However, such provisions are not applicable in this case.
The bench then indicated that it might refer the matter to AIIMS for medical opinion.
CASE TITLE: MS. X v. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF INDIA