SYED KHALIQUE AHMED
NEW DELHI, NOV 4
In a significant development, the Kerala High Court has allowed a 23-year-old management student to terminate her 26-week-old pregnancy from a consensual relationship. The High Court, in its order, observed that “there can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating.”
The court elaborated that a woman has a right to make the reproductive choice as a dimension of her personal liberty under Article 21 of the Constitution of India.
The judgement is important since the Supreme Court, in a recent judgement, allowed termination of pregnancy up to a maximum of 24 weeks to all categories of women, including married and unmarried.
The woman in question here moved to the Kerala High Court after all the hospitals there refused to terminate her pregnancy because it was more than 24-week-old.
In her petition, she submitted that she was in a consensual relationship with her classmate and she got pregnant due to the failure of contraceptives. She told the court that she suffered from Polycystic Ovarian Disease (PCOD), a medical condition in which she has irregular menstruation, and hence, she could not come to know of her pregnancy. She came to know about it only after an ultrasound scan test was conducted on the advice of her doctor. And by that time, she was detected 26-week-old pregnant.
The woman told the court that she was mentally disturbed after she came to know of pregnancy for two reasons: Her classmate with whom she was in a relationship had left the country for further studies and having a child at this stage of her life would disturb her studies. Hence, she decided to get her pregnancy terminated but all the hospitals refused to terminate the pregnancy because it had crossed 24 weeks. The high court allowed the termination of her 26-week-old pregnancy, observing that she had reproductive autonomy. The same argument of “reproductive autonomy” was advanced by the Supreme Court when it allowed the termination of a maximum of 24-week-old pregnancy recently.
However, what the Kerala High Court and earlier, the Supreme Court, ignored is the right of an unborn foetus. A living being in the stage of a foetus is not able to defend his/her rights and hence abortion of a foetus or what is called termination of pregnancy in sophisticated medical jargon is nothing but the killing of the foetus developing as a baby in the womb of his/her mother. Abortion is an overly sensitive and ethical issue in different religious communities, including the majority Hindu community in India, Muslim and Christian communities, and the Kerala High Court and Supreme Court should have considered the right of a foetus before delivering the judgement.
Who will decide whether a foetus should come into the world? According to Islamic jurists, the soul enters a foetus on the 120th day of fertilization or at the end of four months. The opinion of the jurists is based on the teachings of the Quran and the Hadith. Christianity and other major religions of the world also consider a foetus a living being and hence, religious scholars from almost all faiths unanimously oppose abortion, except under a severe medical condition. So, if a foetus gets life immediately at the end of 16 weeks of pregnancy, can a mother carrying the foetus in her womb be given the right and freedom to murder the foetus?
Unfortunately, Indian civil society has failed to strongly defend the right of a foetus. Will the civil society and human rights defenders wake up now and take up the cudgel on behalf of a foetus unable to defend his/her rights?
(Syed Khalique Ahmed is the Chief Editor of indiatomorrow.net)
