Right To Life Of 26 Week Foetus Outweighs Mother's Mental Trauma, Calcutta HC Denies Abortion

The Calcutta High Court recently rejected a woman's petition to terminate her 26-week-old pregnancy, despite the fact that the baby has a high risk of Down Syndrome, along with problems in the oesophagus, heart and abdomen.

Curiously, while doing so, Justice Tapabrata Chakraborty reasoned that the right to life of a 26 week old foetus outweighs the trauma that the mother might have to go through. It essentially accorded weightage to the fact that since the pregnancy was now in the third trimester, almost all the organs of the foetus would have developed.

Dismissing the petition, the court then observed, "There is always a difficulty in choosing a precise point when the unborn gets a right to life. The right answer may lie in accepting that there are degrees of right to life and the foetus gets a stronger right to life as it develops in the mother's womb. The more it develops, the more difficult it becomes to take a decision to abort the same. At this advanced stage of 26 weeks, the right of the foetus to live, in my opinion, outweighs the mental trauma that may be suffered by the mother in giving birth to the said child."

The woman had approached the court on January 22, after several tests indicated these abnormalities in the foetus and consequently, the doctors advised her to terminate the pregnancy. Since the foetus was already 20 weeks old, she petitioned the court in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971.

The Medical Board which examined her, however, did not give a green signal to the abortion, in view of the fact that there was no risk of morbidity and mortality in the case at hand.

Represented by Advocates Kallol Basu and Apalak Basu, she now urged the court to consider the mental agony that she would suffer if she is forced to give birth to the child. She further submitted that they already have a daughter and that in view of the financial constraints, it would be impossible to adequately nurture a child with special needs.

Furthermore, the petitioner relied on precedents to contend that the Board should have considered various factors like stage of pregnancy, danger to life of the mother, post-natal health and period of survival of the child, and should've then prepared a report.

The State, on the other hand, had alleged that there had been a delay on the part of the petitioners to approach the court, even though they had been informed of the foetus's condition when it was 18 weeks old.

While the court refused to accept this contention, it did opine that the case did not fall within the exception clause under Section 5 of the Act, since the life of the mother will not be in danger if she is asked to continue with her pregnancy. It then dismissed the petition on these grounds. 

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