The Punjab and Haryana High Court has decided to examine the constitutional validity of prohibition on termination of pregnancy beyond 20 weeks as stated under the provision of the Medical Termination and Pregnancy Act, 1971, after repeated petitions were filed seeking directions for termination of pregnancy.
The single judge bench of Justice Rajbir Sehrawat observed that in the cases where the medical opinion is already been highlighted that the life of would-be mother/women is at high risk and also the risk of death and/or extreme hardship to the stillborn child, in case he/she comes in this world, still, the medical professionals are not terminating the pregnancy on their own and the reason given by them is that it is prohibited in the Medical Termination And Pregnancy Act, 1971.
The court observed that:
“As a result, some educated and well-off couples might have been successful in saving the life of the would-be mothers/women. However, there would be thousands of couples who are either not able to avail the legal assistance and legal remedies by approaching this court in time or who might be living in abject poverty and therefore, are not able to avail the legal remedy at all. In such situation, the would-be-mothers/women would not have any choice except to lose their own lives in some cases or to give birth to totally lunatic or destitute or incapacitated children, despite the fact that there had been a competent advise from the medical professional for termination of those pregnancies.”
The Sec 5 of the Act provides for some relaxation in a mandatory prohibitive period of 20 weeks, however, that is only in case when such termination of pregnancy is immediately necessary to save the life of the woman. The court noted that this section is ignoring the situation of the fetus with extreme deformity or disease, which may render the life of such a child to be hell if he/she is born.
The counsel for the petitioner referred to the judgments which show that either the issue of the legality of the provisions has not been adverted to in the judgments at all or the judgments have held the continuation of such pregnancy against the medical advice as violative of fundamental rights of the would-be-mother/women.
The court further noted that, “that if these provisions violate the fundamental rights of the of the would-be mother/woman, then such a provision cannot exist on the statute”.
It is further observed:
“The Act restricts the termination of pregnancy only upto 20 weeks. However, no remedy, whatsoever is provided for, in the Act, if any deformity/disease or any terminal problem happens to the fetus after the prescribed period of 20 weeks. In such if this provision remains on the statute book, the would-be mother/woman is bound to lose her life, along with the life of the fetus/still born child, unless she happens to be already on operation table of the Medical practitioner to take advantage of relaxation provided by Section 5 of the Act.”