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Law

Protect Life Of Unborn Child: Centre, AIIMS To Delhi HC In Abortion Case

Permitting abortion, Delhi HC observed that the reproductive rights of a woman included the right not to procreate.

By - Ritika Jain | 17 Jan 2024 7:15 AM GMT

Delhi High Court on January 19 will likely decide on the Centre’s plea seeking a recall of its order permitting a woman to abort her pregnancy amid mental health concerns. The Centre challenged the high court’s January 4 order and sought protection for the unborn child.

The Centre’s plea comes two weeks after the high court permitted a woman to abort her pregnancy after taking note of medical reports that diagnosed her as suffering from extreme trauma and depression because of her husband’s death.

The woman, a 26-year-old, lost her husband in October 2023 barely seven months after they got married last year in February. The woman found she was 20 weeks pregnant after her husband’s death.

Even as the Centre seeks protection for the life of an unborn child, AIIMS Delhi—which was tasked with carrying out the abortion—has expressed concerns against foeticide and has sought directions from the court for the welfare, care, and protection in the interest of the child.

“Foeticide in this case is neither justified nor ethical as the fetus is grossly normal,” AIIMS Delhi's January 12 report read.

This is the second time in as many months that the Centre and the AIIMS have expressed reservations against the termination of a pregnancy where the foetus is not suffering any abnormalities.

In October 2023, the Supreme Court on the Centre’s plea recalled its order permitting termination of a pregnancy after AIIMS Delhi said foetus was healthy and viable kickstarting the debate on pro-life versus pro-choice.

Also Read: SC Says No For Abortion; No Immediate Threat to Mother, Foetus Normal

Reproductive right includes the right not to procreate: Delhi High Court

The 26-year-old woman – R, found she was 20-weeks pregnant on October 31, merely weeks after her husband’s death. R moved Delhi High Court in December 2023 seeking permission to terminate her pregnancy amid mental health concerns and a change in her marital status.

On January 4, the Delhi High Court permitted the woman to terminate her 26-week pregnancy after taking note of the AIIMS medical report which diagnosed the widow as suffering from “extreme trauma and depression” because of her husband’s death.

“…this Court is of the opinion that, at this juncture, the Petitioner should be permitted to terminate her pregnancy because allowing the Petitioner to continue with the pregnancy can impair the mental stability of the Petitioner as she is showing suicidal tendencies,” the high court’s January 4 order read.

The Delhi High Court had relied on the Supreme Court’s November 2022 judgment which underscored a woman’s right to bodily integrity and reproductive autonomy.

Her life, her choice, the Supreme Court had ruled at the time.

The high court in its January 2024 order permitting termination of pregnancy had relied on this top court judgement which also recognised that change in material circumstances may influence women’s decision on motherhood. Furthermore, in a landmark observation, the high court ruled that “a woman’s right to reproductive choice includes the right not to procreate”.

R was 30 weeks and six days pregnant at this time. However, despite a court order she has been unable to terminate her pregnancy.

Feticide neither justified nor ethical: AIIMS to HC

On January 6, two days after the high court directed AIIMS Delhi to conduct the termination of pregnancy, the hospital's medical superintendent moved the high court for directions after expressing concern that at 30 weeks, six days the foetus was viable, and the baby would be alive on termination of the pregnancy. “The anticipated NICU-ICU care will range from 30-45 days with reasonable risk of physical and mental handicap of the child,” AIIMS told the high court.

AIIMS Delhi further advised carrying the pregnancy to term till 37 weeks to minimise risks and “very high likelihood of morbidity-free survival”.

Medical opinion in this case made it “abundantly clear” that the termination of pregnancy cannot happen unless the doctors conduct a foeticide, failing which the pre-term delivery will be fraught with complications.

The hospital pointed out that the Centre’s guidelines on aborting a foetus are applicable in cases of fetal abnormality only. “Foeticide in this case is neither justified nor ethical as the foetus is grossly normal,” AIIMS told the high court in its January 12 report.

“That it is imperative for this Hon'ble Court to consider protecting the right to life of the unborn child so that the child has a fair chance of survival,” the report added.