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Polity & Governance
Mahesh

14/10/23 07:52 AM IST

Rights of Unborn Child

In News
  • The Supreme Court is hearing a married woman’s request to end her 26-week pregnancy.
  • The case has travelled to two different Benches of the SC, raising crucial questions on the decisional autonomy of a woman to abort, and the legislative framework.
About the case
  • The 27-year-old married woman, who already has two boys, has argued that the pregnancy was unplanned.
  • She has said that her family income is insufficient to support another child, and that she is under medication for post partum depression after the birth of her second child.
  • On October 9, a two-judge Bench of Justices Hima Kohli and B V Nagarathna, after interacting with the petitioner through video conferencing, allowed the termination of the pregnancy.
  • The court reasoned that an unwanted pregnancy due to failure of contraceptive methods is the same as a forced pregnancy for which termination is allowed up to 24 weeks.
  • However, AIIMS, Delhi, wrote to the SC that it would need a directive on whether a foeticide (stopping the foetal heart) can be done before termination since the foetus is “currently viable”.
Law on Abortion
  • The Medical Termination of Pregnancy Act (MTP Act) allows termination of pregnancy in three stages.
  • Termination of pregnancy up to 20 weeks is allowed on the advice of one doctor.
  • If a pregnancy is 20-24 weeks, the right to seek abortion is determined by two registered medical practitioners as an exception, but only under certain categories.
  • Section 3B of the Rules under the MTP Act lists seven categories of forced pregnancies, including statutory rape in case of minors or sexual assault; women with disabilities; or when there is a change in marital status of women during pregnancy.
  • After 24 weeks, a medical board must be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality.
Rights of unborn Child
  • The landmark 1973 US Supreme Court verdict in Roe v Wade that made abortion a constitutional right allowed abortion up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb.
  • Foetal viability in 1973 was pegged at 28 weeks (7 months), which is now with scientific advancement lower at 23-24 weeks.
  • In 2005, Rajasthan High Court in Nand Kishore Sharma versus Union of India rejected a challenge to the constitutional validity of the MTP Act on the grounds that it violates the fundamental right to life of an unborn child.
  • The right of an unborn child has, however, formed the basis of legislation that deal with succession or the law banning sex-determination of foetus.
  • Section 416 of CrPC also provides for postponement of the death sentence awarded to a pregnant woman.
Source- Indian Express

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