Delhi HC asks lawmakers to define balance between maternal autonomy & foetal rights, permits 27-week abortion for minor rape survivor

Representative image

The Delhi High Court has permitted a 15-year-old minor, who became pregnant as a result of sexual assault, to undergo medical termination of a 27-week pregnancy, while also urging lawmakers to clearly define the balance between maternal autonomy and foetal rights once the stage of viability is reached.

Foetal viability refers to the stage when a foetus can survive outside the womb. The court noted that with more cases being filed seeking termination of pregnancy beyond the statutory limit, the question has become increasingly significant in abortion jurisprudence, and the responsibility to resolve it ultimately lies with the legislature.

"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 his judgment on Friday.

The court stressed that the victim’s mental and physical well-being, given the cruelty she had suffered, must outweigh the uncertain possibility of the foetus being born alive, as noted by medical experts.

"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," the order said.

The court further held that the State cannot compel a woman to endure trauma solely for the preservation of unborn life, as such compulsion would undermine her fundamental rights by making them subordinate to rigid biological benchmarks.

It noted that in cases beyond 24 weeks, courts have consistently relied on medical board recommendations. "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 added.

He said expert opinions provide the necessary medical foundation for judicial discretion, ensuring that decisions are guided by expertise rather than statutory silence.

The court emphasised that a woman’s rights are paramount where her life or health is endangered. It pointed out that where foetal abnormalities are grave or life-incompatible, termination has been permitted even up to 28 or 32 weeks. However, in cases where the foetus is viable and healthy and termination is sought on non-medical grounds, courts have declined relief, recognising the rights of a foetus capable of survival outside the womb.

"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 judgment stated.

In this case, the court clarified that doctors must retain full discretion to halt or cancel the procedure if they find it poses a serious risk to the girl’s life. It also directed the hospital to preserve the foetus for DNA testing, which may be required in the related criminal proceedings.

The order added that if the child is born alive, the hospital must provide all feasible medical assistance, and the Child Welfare Committee should take necessary measures. The court further directed that the cost of the procedure be borne by the State.

With inputs from PTI