A division bench of Chief Justice Rajendra Menon and Justice Brijesh Sethi said it will hear the plea on Tuesday. The plea filed by social activist and lawyer Amit Sahni was mentioned before the bench on Monday.
‘Section 3(2)(b) of the Medical Termination of Pregnancy Act is against the right to privacy as it completely prohibits termination of pregnancy in case the fetus is suffering from severe abnormality even after a period of 20 weeks.’
In his plea, Sahni has sought direction to the government to replace or suitably extend the length of pregnancy from "20 weeks" by a further period of four to six weeks by bringing suitable amendments in Section 3(2)(b) of Medical Termination of Pregnancy (MTP) Act.
Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act prohibits abortion of a foetus after 20 weeks of pregnancy.
"There is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped," the plea said.
Where pregnancy is caused by rape or due to failure of a device used by a married woman or by her husband, the MTP Act is totally silent on it, the plea said adding that it makes termination of pregnancy as an offence punishable under Indian Penal Code if the same is not done in accordance with the MTP Act.
The plea said that the fetal abnormalities are detected appropriately between 18 to 20 weeks and the period of one-two weeks is too less for the would-be parents to take the difficult call on whether to keep their baby or to abort it.
"...the lack of legal approval moves abortion to the underground (illegal manner) and they are done in unhygienic conditions by untrained persons, thus putting thousands of women at risk," read the plea.
It also demanded empowering of women with sexual rights, legal protection against sex crimes and sex choices both in their own interest and for the sake of reducing the fertility rate as a whole.
It said that abortion beyond a period of 20 weeks is permitted only if continuing the pregnancy poses a substantial risk to the woman's life. But the law does not consider the factum of serious abnormalities suffered by the child in womb and are detected after the 20th week.
Sahni has cited Supreme Court judgments that a woman's right to privacy, dignity and bodily integrity should be respected. He also mentioned many European countries including France, UK and Italy and even Nepal which allow abortion after 20 weeks if fetal abnormalities are discovered.
He requested the court to hold that the right to abort the pregnancy is a fundamental right of the woman's body sovereignty and each woman has the sole right to make a decision about her body in the context of carrying on a pregnancy or to terminate the same, subject to checks as provided under the MTP Act or further checks, which may be provided.
Sahni also pleaded that unmarried women and widows are equally entitled to terminate a pregnancy under the MTP Act.