Time to address issue of maternal autonomy, foetal rights: Delhi HC

It is time that lawmakers address the question of delineating the balance between maternal autonomy and foetal rights at the stage of viability, the Delhi High Court has observed.

'Foetal viability' refers to the stage where a foetus can survive outside the womb.

The court observed that with the increasing number of cases seeking termination of pregnancy beyond the statutory limit, the question of foetal viability has assumed considerable importance in abortion jurisprudence and the ultimate responsibility to settle the matter rests with the law-making authority.

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, the high court said.

The high court made the observations while allowing a 15-year-old minor girl to undergo medical termination of pregnancy of 27 weeks, which was a result of sexual assault committed upon her.

"The law must clearly delineate the balance between maternal autonomy and foetal rights at the stage of viability.

"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," Justice Arun Monga said in a judgment passed on Friday.

The court said the mental and physical well-being of the victim in the case, who already endured cruelty at the hands of the perpetrators, must outweigh the mere probability of the foetus being born alive, which the medical experts themselves had noted as uncertain.

"Considering the age of the petitioner and the mental and physical trauma inflicted upon her by the heinous act of sexual assault, this court is of the opinion that continuation of pregnancy would permanently scar her psyche and cause grave and irreparable harm to her physical and mental health," it said.

It said the State cannot compel a woman to undergo physical or mental trauma solely for the preservation of unborn life.

Any such compulsion would, in effect, render her fundamental rights nugatory and subordinate to rigid biological benchmarks, the court added.

"In matters of such type, as the one in hand, this court has consistently relied upon the recommendations of duly constituted medical boards, more so when the pregnancy has crossed the 24-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," Justice Monga said.

The court added that the expert 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.

It said 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 28 or 32 weeks, the high court pointed out.

It said that 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.

"It is, however, at this juncture that a larger question arises viz. 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," the court said.

In the present case, the court said that during the procedure, if the attending doctors form the opinion that there is a serious risk to the life of the minor girl, they should have full discretion to withhold or cancel the termination procedure.

It also directed the hospital to preserve the foetus for DNA testing, as it might be required in connection with the pending criminal proceedings.

If the child is born alive, the hospital superintendent will ensure that all possible and feasible medical assistance is extended to the child, and the Child Welfare Committee concerned should take necessary steps, it said  The court directed that the cost of the procedure would be borne by the State.