In the matter of Indulekha Sreejith v Union of India and Ors., the Kerala High Court on 27^th August 2021 observed that if the stage of pregnancy is such that it may result in a live baby and that the foetal abnormalities diagnosed are not lethal, without any threat to the life of the mother, the reproductive choice of the mother which is a facet of the fundamental right guaranteed to her under Article 21 of the Constitution, will have to give way to the right of the unborn to be born.

A pregnant woman, pregnant of about 31 weeks, has sought directions to the respondents to terminate her pregnancy. The case of the petitioner (Indulekha Sreejith) is that though foetal abnormalities have been diagnosed, the respondents refused to terminate the pregnancy, as the time limit for termination in terms of the Medical Termination of Pregnancy Act, 1971 (the Act) is over.

Issue involved:

1. Whether this court would be justified in permitting medical termination of pregnancy in a case where a duly constituted Medical Board opines that the foetal abnormalities are not lethal and the stage of pregnancy is such that it may result in a live baby, merely for the reason that the pregnant woman chooses to terminate the pregnancy?

The High Court held that:

1. The Act has prescribed an outer time limit of 20 weeks for terminating a pregnancy medically.
2. Despite the provisions in the Act, having regard to the fundamental rights of the citizens, the constitutional courts in the country have been permitting termination of pregnancies medically if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or there is a substantial risk that the child, if born, would suffer from serious physical or mental abnormalities.
3. To ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy, the Act has been amended in terms of the Medical Termination of Pregnancy (Amendment) Act, 2021.
4. However, this Act has not been notified yet.
5. An unborn child has a life of its own and rights of its own and the rights of unborn are recognised by law.
6. The right to life of the unborn can be equated with the fundamental right of the mother guaranteed under article 21 of the Constitution.
7. The unborn has life from the stage it transforms into foetus.
8. The right to life of an unborn shall also be considered as one falling within the scope of Article 21 of the Constitution.
9. The Court struck balance between the rights of the mother and the rights of the unborn.
10. If the stage of pregnancy is such that it may result in a live baby and that the foetal abnormalities diagnosed are not lethal, without any threat to the life of the mother, the reproductive choice of the mother which is a facet of the fundamental right guaranteed to her under Article 21 of the Constitution, will have to give way to the right of the unborn to be born.

– Esha Shah, Paralegal