SC orders medical board in abnormal foetus case

The Supreme Court on Friday directed the Maharashtra government to set up a medical board at KEM Hospital in Mumbai to examine the rape victim seeking termination of her 24-week-old pregnancy on grounds of an abnormal foetus and submit a report on Monday.

The bench of Justice Jagdish Singh Khehar and Justice Arun Mishra asked the victim to appear before the board at 10 a.m. on Saturday so that she could be examined to ascertain whether the foetus can be terminated or not.

The bench said that the report by the medical board would be placed before it on Monday morning, turning down a suggestion by Solicitor General Ranjit Kumar to take up the matter on Tuesday as because of intervening Sunday, the report may not reach the court on Monday.

At the outset of the hearing, Ranjit Kumar told the court that the matter could be referred to the AIIMS to be examined by a medical board on Saturday and based on its opinion, a decision can be taken on Monday.

However, the court referred the matter to KEM Hospital in Mumbai as senior counsel Colin Gonsalves, appearing for the petitioner, told it that she was in Mumbai and given her condition, it would not be possible for her to travel to Delhi.

The bench then asked the Solicitor General to assist the court on the question of law, saying: "The issue is not as simple as it appears."

The petitioner has sought the court's direction for the termination of her pregnancy as under Section 3(2) of the Medical Termination of Pregnancy Act, 1971, pregnancy beyond 20 weeks could not be terminated.

She has also challenged the constitutional validity of the section.

The court was given the medical report which says that stomach of the foetus was uncovered and as a result, the intestines were growing outside it. The report further says that the foetus's skull too was not fully developed, and holds chances of its survival were from zero to a few hours.

However, under Section 5 of the MTP Act, pregnancy beyond 20 weeks could be terminated only if there is a threat to the life of the mother. In the instant case there is no threat to the life of the mother but foetus is abnormal and the chances of its survival are remote.

The petitioner has contended that this ceiling of 20 weeks could have been justified when this law was enacted in 1971 but it does not hold ground today given the advancement in technology that allows safe termination of pregnancy even after 20 weeks right up to 26 weeks.

She has further contended that the artificially fixing of upper limit of 20 weeks was arbitrary as women who get the 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 petition says that in conformity with international laws, Albania, Australia, Belgium, Canada, China, Croatia, Denmark, Iceland, Israel, Luxembourg, Nepal, Netherlands, Slovakia, South Africa, Britain, and the US have not fixed any absolute time limits in their abortion laws.

Instead, the petition says that these countries consider the woman's physical and mental health and doctors' expert opinions in determining whether a medical termination of pregnancy can be performed post 20 weeks.