The Delhi High Court has urged lawmakers to frame a clear law on protecting the rights of a viable foetus while safeguarding maternal autonomy. The Court allowed a 15-year-old rape survivor to terminate her 27-week pregnancy, stressing urgent legislative clarity.
New Delhi: The Delhi High Court has recently raised an important legal question while allowing the termination of the pregnancy of a 15-year-old minor girl. The Court has suggested that lawmakers should think about making a clear law on protecting the rights of a viable foetus that may be born alive during an abortion, while also ensuring that a woman’s autonomy and right to health are protected.
The case came before the Court as a Writ Petition filed by the minor through her mother, seeking permission to terminate a pregnancy of 27 weeks.
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The matter was heard by Justice Arun Monga. While deciding, the Court raised the bigger issue of balancing maternal rights and foetal rights. Justice Monga observed,
“What is the position in law as regards the rights of a viable foetus which, if delivered, may be born alive? This issue warrants attention. While constitutional courts have, in the absence of legislative clarity, sought to balance competing interests through case-specific adjudication. However, the absence of a clear statutory framework leaves the matter unsettled……Judicial discretion, however sensitively exercised, cannot be a substitute for legislative determination. The law must clearly delineate the balance between maternal autonomy and foetal rights at the stage of viability…”
The petitioner was represented by Advocate Anwesh Madhukar and the State was represented by Additional Standing Counsel Amol Sinha.
The Court noted that the medical opinion was not certain about the foetus being born alive and stressed that the well-being of the minor victim must take priority.
The order stated,
“…..What is certain is the plight of the victim, a minor child who has conceived under the agony of fate. She requires greater protection at present than the uncertain possibility of preserving a foetus that may not even survive. It is also noted that medical terminations between 24 to 28 weeks of gestation ordinarily result in the foetus being stillborn, though exceptions may exist….”
The Court further said that the trauma suffered by the young girl, who had been subjected to sexual assault, made it clear that continuing the pregnancy would cause her permanent harm.
The Bench observed,
“While it is true that the Medical Termination of Pregnancy Act, 1971, prescribes 24 weeks as the statutory limit for termination, it is equally well established that constitutional courts, in exercise of their extraordinary jurisdiction under Article 226 of the Constitution of India, may in exceptional circumstances permit termination beyond the statutory limit. The present case, in the opinion of this Court, clearly falls within such category.”
Before giving its final ruling, the Court also addressed the recurring issue of what rights a foetus has once it reaches the stage of viability. Justice Monga pointed out that the current law does not provide any clarity on this point.
The judgment noted,
“In matters of such type, as the one in hand, this Court has consistently relied upon the recommendations of duly constituted Medical Boards in such matters, more so when the pregnancy ha crossed the twenty-four-week mark. The role of these expert bodies in assessing the risks to the woman‟s life and health, and in determining the severity of foetal abnormalities, whether fatal or otherwise, cannot be overstated. Their opinions have provided the necessary medical foundation for judicial discretion, ensuring that the decision-making process is informed by expertise rather than constrained by statutory silence…. From the judicial precedents, it is discernible that where the life or health of the woman is endangered, her rights are paramount. Where the foetus suffers from grave or life-incompatible abnormalities, courts have permitted termination even up to twentyeight or thirty-two weeks. Conversely, where the foetus is viable and healthy, and termination is sought on non-medical grounds, courts have declined relief, being mindful of the rights of a foetus capable of independent survival….”
At the same time, the Court emphasized that a woman cannot be forced by the State to continue with a pregnancy when it causes her physical or mental trauma, as that would make her fundamental rights meaningless.
The judgment recorded,
“No doubt, until such clarity is provided, courts will continue to tread this delicate path; but the ultimate responsibility to settle the matter rests with the law-making authority. It is time that the lawmakers of the country address this question in no uncertain terms.”
The Court allowed the petition, holding that in this case the protection of the girl’s life, health, and dignity had to be placed above the uncertain chances of survival of the foetus.
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This ruling highlights a very important gap in Indian abortion law. While courts have often stepped in to permit abortions beyond the 24-week statutory limit in extraordinary circumstances, the lack of legislative clarity continues to create uncertainty.
The Delhi High Court has now clearly called upon Parliament to take up the issue and create a law that strikes the right balance between maternal autonomy and the rights of a viable foetus.
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