1

IN THE HON’BLE SUPREME COURT OF INDIA

S.L.P. No. ____/2019

(Under Article 136 of the Constitution of India)

IN THE MATTER OF:

Nandini …Petitioner

Versus

Union of India …Respondent

WRITTEN MEMORIAL ON THE BEHALF OF RESPONDENT

Meghan
Counsel for the Respondent
Class roll no. 173562
Exam Roll No. 170371
Section E, Semester-V
Campus Law Centre
Faculty of Law, Delhi University
 TABLE OF CONTENTS

S. NO. PARTICULARS PAGE NO.

List of references and cases

1 3-6

2 Statement of jurisdiction 7

3 Statement of facts 8-9

4 Statement of issues 10

5 Summary of arguments 11-12

6 Statement of arguments advanced and prayer 13-36

 LIST OF REFERENCES AND CASES

A. List of Statues and International Conventions referred:

1. The Constitution of India, 1950

2. The Indian Penal Code, 1860
3. The Medical Termination of Pregnancy Act, 1971
4. Pre- Conception and Pre-Natal Diagnostic Technique (Prohibition of Sex selection),
1994
5. Hindu Succession Act, 1956
6. The Rights of Persons with Disability Act, 2016
7. Medical Termination of Pregnancy Amendment Bill 2014 (draft)
8. Code of Criminal Procedure, 1973
9. Justice (Care and Protection of Children) Model Rules, 2016
10. Transfer of Property Act, 1882
11. United Nations Convention on the Rights of Persons with Disabilities, 2006
12. American Convention on Human Rights, 1969.

B. Websites Referred:

1. www.manupatra.com
2. www.indiankanoon.org
3. www.scconline.com

C. List of articles referred:

1. Right to life of Fetus – Verification of laws in the context of female Foeticide by

Emandi Ranga Rao, International Journal of Law, Volume 3; Issue 2 (March 2017).
2. Abortion Laws in India: Review of Court Cases, Centre for Health Law, Ethics and
Technology, Jindal Global Law School (November 2016).
3. The Socio-Cultural Aspect of Abortion in India: Law, Ethics and Practice by Bhavish
Gupta & Meenu Gupta (Winter Issue 2016), ILI Law Review.
4. Outcomes of Infants with Prenatally Diagnosed Congenital Heart Disease Delivered
 in a Tertiary-care Pediatric Cardiac Facility by Trupti Deepak Changlani, Annu
Jose, et. al., Volume 52 (October 15, 2015), Indian Pediatrics (Ip) Journal.
5. Banning Abortions in Cases of Race or Sex Selection or Fetal Anomaly, Guttmacher
Institute (February 26, 2019).
6. What You Should Know About Abortion After 20 Weeks by thirdway.org.
7. The Wages of Crying Wolf: A Comment on Roe v. Wade.
D. List of Cases Referred:

S.No Citations Pages

1 Basheshar Nath v. Comissioner of Income Tax 18

[1959 AIR 149]
2 Davis v. Davis [842 S.W.2d 588, 597 (Tenn. 30
1992)]
3 Govind v. State of M.P [1975 SCR (3) 946] 13

4 Indra Sawhney v. Union of India [1992 Supp (3) 24

SCC]
5 Jabbar v. State [1966 CriLJ 1363] 31

6 Jacob George v. State of Kerala [(1994) 3 SCC 16, 17

430]
7 Jeeja Ghosh & Another v. Union of India & Ors, 23
[Writ Petition (C) No. 98 of 2012 in the Hon’ble
Supreme Court of India]
8 Nand Kishore Sharma & Ors v. Union of India & 16
Anr [AIR 2006 Raj. 166]
9 Nikhil D. Dattar v. Union of India [SLP 27
No.5334/2009]
10 Olga Telis v. Bombay Municipal Corporation 14
[AIR 1986 SC 180]

11 Suchita Srivastava and Anr. v. Chandigarh 14, 31

Administration [AIR 2010 SC 235]
12 Justice K.S. Puttaswamy (Retd) v. Union of India, 19
[(2017) (10) SCC 1]
13 Sarmishtha Chakrabortty v. Union Of India 25
Secretary [Writ Petition (C) No.431 Of 2017 in the
Hon’ble Supreme Court of India]
14 Oriental Insurance Co. Ltd v. Santhilal Patal And 32
Anr. [2007 (4) ALD 855]
15 People’s Union for Civil Liberties v. Union of 24
India & Others [Writ Petition (C) No. 196/2001
in the Hon’ble Supreme Court of India]
16 Vinod Soni v. Union Of India [2005 CriLJ 3408] 17

17 S.K Gupta v. Union Of India & Others [PIL no. 25

 S.No Citations Pages
3270/2012 in the Hon’ble Rajasthan High Court]
18 Shraddha v. Badresh and Ors [2006 ACJ 2067] 32

19 R And Anr v. State Of Haryana & Ors [CWP- 33

6733-2016 in the Hon’ble Punjab and Haryana
High Court]

E. List of abbreviations

MTPA, 1971 Medical Termination of Pregnancy Act, 1971

PNDT, 1994 Pre-Conception & Pre Natal Diagnostic Technique, 1994
HC High Court
SLP Special Leave Petition
PWD Persons with Disability
IPC, 1860 Indian Penal Code, 1860
Cr.P.C Criminal Procedure Code, 1973
RPWD, 2016 Rights of Persons with Disability Act,2016
CHD Congenital Heart Disease
UNCRPD United Nations Convention on the Rights of Persons with
Disabilities
 STATEMENT OF JURISDICTION

The present Special Leave Petition (hereinafter SLP) is being filed by the Petitioner under
the provisions that corresponds to Article 136 of the Constitution of India. The respondents
respectfully submit to the jurisdiction of this Hon’ble Court.

The Article invoked is reproduced hereunder:-

“ARTICLE 136. Special leave to appeal by the Supreme Court.-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence
or order passed or made by any court or tribunal constituted by or under any
law relating to the Armed Forces.”
 STATEMENT OF FACTS

1. That, Nandini, during her regular check up in the 22nd week of her pregnancy came to
know that there is fair chance of her child being born with a congenital handicap and
would need a pacemaker. Doctors in first and second opinion with a board of doctors of
a recognized government hospital opined that even with pacemaker baby may not be
able to lead a normal life.

2. The doctors refused to perform abortion, as abortion is not permitted to be performed

beyond 20th week of pregnancy except when life of mother was in danger. The
Hon’ble High Court refused to give relief-citing ground that there was no scope for
exercising discretion. Provisions of the Indian Penal Code, 1860 (hereinafter IPC,
1860) read with Medical Termination of Pregnancy Act, 1971 (hereinafter MTPA,
1971) makes it clearly a penal offence to abort except, in circumstances contained in
MTPA, 1971.

3. An appeal via SLP to Supreme Court admitted wherein provisions contained in IPC,
1860 and MTPA, 1971 claimed to be violative of fundamental right to life and that
every woman has an absolute right over her body and is entitled to decide abortion of
her pregnancy at any stage before birth.

4. Claimed that Pre-Conception & Pre Natal Diagnostic Technique, 1994 (hereinafter PNDT,
1994) has specifically prohibited sex-selective abortion only and Parliament in its
wisdom has not prohibited use of diagnostic techniques for discovering fetal
disabilities. The purpose of the diagnostic testing will be frustrated if fetus with
disability not allowed to be aborted, especially in cases in which the disability is
discovered at advanced stage of pregnancy.

5. Petitioner cites her economical background, which would result in undischargeable

burden of changing pacemaker every five years. That, doctors have opined that even
with a pacemaker child would not be able to lead a normal life and provisions in IPC,
1860 and MTPA, 1971 would violate right to life of Nandini and right of unborn child
 to a life with dignity.

6. The respondents, Union of India, defends the provisions of IPC, 1860 and MTPA, 1971
on the ground that decision to give preference to the women’s right to her body or to
the life of unborn child would involve moral judgment and Parliament alone is entitled
to take decision on behalf of the people of India and Supreme Court is not the right
forum to decide the issue. Abortion in India is exception rather than rule. Women
cannot seek absolute right without restrictions or regulations, which may result in loss
of life of another. MTPA, 1971 does not grant right of abortion but only a permission to
abort in certain limited circumstances specified in the act and that allowing abortion of
potential disability will be contrary to the UN Convention on the Rights of the Persons

with Disability, 2006 (hereinafter UNCRPD, 2006) on 1 st October 2007 which came
into force in 2008 and has been ratified by India.
 STATEMENT OF ISSUES

1. Whether the provisions in the IPC, 1860 and the MTPA, 1971 are unconstitutional being
violative of the Petitioner’s right to life as well as the right of the unborn to a life with
dignity?

2. Does fundamental right of privacy give unfettered right to women over rights of unborn
child with disability? Fundamental right to privacy of mother v. disability rights of unborn
child.

3. Whether fetus is entitled to protection from the State? Should abortion be permitted on the
basis of period of 20 weeks?
 SUMMARY OF ARGUMENTS

ISSUE NO. 1: Whether the provisions in the IPC, 1860 and the MTPA, 1971 are
unconstitutional being violative of the Petitioner’s right to life as
well as the right of the unborn to a Life with dignity?

It is humbly submitted before the Hon’ble Supreme Court that the provisions of IPC, 1860
and MTPA, 1971 are not unconstitutional and do not violate the right to life of any women
as well as right of unborn child to a life with dignity. The Provisions of IPC, 1860 and
MTPA, 1971 complement each other and are not unconstitutional because they have been
framed for the safety of the woman and the fetus and for the larger Interests of the society.
Therefore, they do not infringe the fundamental right of the woman under Article 14 and
Article 21. In this case the appellant approached the gynecologist when the fetus was over 20
weeks old, it was not legally permissible for the appellant to abort the fetus at such advanced
stage of pregnancy since baby becomes viable at this stage.

ISSUE NO. 2: Does fundamental right of privacy give unfettered right to women
over rights of unborn child with disability? Fundamental right to
privacy of mother v. disability rights of unborn child.

That, there is no threat to the life of the Petitioner and fetus, which is a qualification for
allowing abortion. A balance has to be made with life of unborn child and the right of
women to abort fetus. This balance is in the form of protecting human life. The existing
provisions for that reason only. Though there is no settled law regarding this, the final call
has to be taken by the Parliament. Parliament has an obligation to protect the life of disabled
unborn child just like that of a girl child because India is a Socialist and welfare state. It is
incumbent upon state to protect marginalized groups like disabled persons and girl child to
counter stigma and ensure constitutional protection. That state has been taking sincere efforts
to ensure persons with disabilities realize their full potential and live life with dignity.
ISSUE NO. 3: Should abortion be permitted on the test of feasibility of life with
dignity and not on the basis of period of pregnancy or viability of
life outside the womb?

It is most respectfully submitted that abortion should not be permitted on the test of feasibility
of life with dignity but on the basis of period of pregnancy or viability of life outside the
womb. That, there is a compelling state interest in protecting the life of a prospective child.
The existing law of India in the IPC, 1860, acknowledges that an embryo is entitled to legal
protection and the unborn child‘s right to life is evident from Section 315 of the IPC, 1860.
By treating the act of procuring an abortion as an offence, an implicit protection has been
provided to the fetal right.
 STATEMENT OF ARGUMENTS ADVANCED

ISSUE NO. 1: Whether the provisions in the IPC, 1860 and the MTPA, 1971 are
unconstitutional being violative of the Petitioner’s right to life as
well as the right of the unborn to a Life with dignity?
It is humbly submitted before the Hon’ble Court that there is no violation of the
fundamental right of a person to life whatsoever under Article 21 1 of the Constitution of
India. The challenging of the provisions of IPC, 1860 and MTPA, 1971 is not justifiable.
Indian legislature has adopted liberal approach with respect to abortion laws by permitting
abortion under prescribed conditions. Abortion is considered as a qualified right subject to
some restrictions considering the social conditions of the society; an abortion cannot be
performed solely on a woman’s request.

1.1. Violation of right to life

1.1.1. Article 212 of Indian constitution provides right to life & right to privacy. In X v. Hospital Z3,
it was observed that the Right of Privacy is an essential component of right to life envisaged
by Article 214, the right, however, is not absolute and may be lawfully restricted for the
prevention of crime, disorder or protection of health or morals or protection of rights and
freedom of others.

1.1.2. In Govind v. State of Madhya Pradesh5, the Court observed that there could be no doubt that
privacy-dignity claims deserve to be examined with care and to be denied only when an
important countervailing interest is shown to be superior. If the Court does find that the
claimed right is entitled to protection as a fundamental privacy right, a law infringing it must
satisfy the compelling state interest test. Then the question would be whether a state interest
is of such paramount importance as would justify an infringement of the right. Obviously, if
the enforcement of morality were held to be compelling as well as a permissible state interest,
the characterization of the claimed rights as a fundamental privacy right would be of far less
significant.

1
The Constitution of India, 1950, Art. 21. Protection of life and personal liberty: No person shall be
deprived of his life or personal liberty except according to procedure established by law.
2
Id.
3
(1998) 8 SCC 296.
4
Supra n. 1, pp. 13.
5
1975 SCR (3) 946.
1.1.3. In Olga Telis v. Bombay Municipal Corporation6, prescribed by the law for the deprivation
of rights conferred by Article 217 must be fair, just and reasonable. It must conform to the
norms of justice and fair play and the provisions of IPC, 1860 and MTPA, 1971 are fair, just
and reasonable.

1.1.4. In Suchita Srivastava and Anr. v. Chandigarh Administration 8 the Hon’ble Apex court
observed as follows:
“22. There is no doubt that a woman's right to make reproductive choices is also a
dimension of 'personal liberty' as understood under Article 21 of the
Constitution of India, 1950. It is important to recognize that reproductive
choices can be exercised to procreate as well as to abstain from procreating.
The crucial consideration is that a woman's right to privacy, dignity and
bodily integrity should be respected. This means that there should be no
restriction whatsoever on the exercise of reproductive choices such as a
woman's right to refuse participation in sexual activity or alternatively the
insistence on use of contraceptive methods. Furthermore, women are also free
to choose birth-control methods such as undergoing sterilization procedures.
Taken to their logical conclusion, reproductive rights include a woman's
entitlement to carry a pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case of pregnant women there is
also a 'compelling state interest' in protecting the life of the prospective child.
Therefore, the termination of a pregnancy is only permitted when the conditions
specified in the applicable statute have been fulfilled. Hence, the provisions of
the MTP Act, 1971 can also be viewed as reasonable restrictions that have
been placed on the exercise of reproductive choices.”

1.1.5. In Roe v. Wade9 the Supreme Court of United States observed that the State cannot restrict a
women's right to an abortion during the first trimester, the State can regulate the abortion
procedure during the second trimester ‘in ways that are reasonably related to maternal health
and in the third trimester, demarcating the viability of the fetus, a State can choose to restrict
or even to prescribe abortion as it would deem fit.’ It was held that the childbirth endangers
6
AIR 1986 SC 180.
7
Supra n. 1, pp. 13.
8
AIR 2010 SC 235.
9
410 US 113 (1973).
 the lives of some women, voluntary abortion 'at any time and place' regardless of medical
standards would impinge on a rightful concern of the society. The woman's health is part of
that concern, as is the life of the fetus after quickening. These concerns justify the State in
treating the procedure as medical one.

1.2. Constitutionality of the provisions

1.2.1. Section 31210 of the IPC, 1860, punishes the person who causes the miscarriage of the woman
except done in the good faith for the purpose of saving the life of the woman. The said
section has been given overriding effect by section 311 of MTPA, 1971. A careful perusal of
section 312 of MTPA, 1971 clearly reveals that it has modified the stringent provision of the
law of abortion as contained under section 312 13 of the IPC, 1860 by adding more grounds
mentioned hereunder:
10
Indian Penal Code, 1860, s. 312. Causing miscarriage: Whoever voluntarily causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman,
be punished with imprisonment of either description for a term which may extend to three years, or with fine, or
with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for
a term which may extend to seven years, and shall also be liable to fine.
Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.
11
Medical Termination of Pregnancy Act, 1971, section 3, When pregnancies may be terminated by
registered medical practitioners:
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical
practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force,
if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical
practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less
than two registered medical practitioners are, of opinion, formed in good faith, that-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave
injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped.
Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the
anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the
pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married
woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted
pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health
as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable
foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained
the age of eighteen years, is a 4 [mentally ill person], shall be terminated except with the consent in writing of
her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent
of the pregnant woman.
12
Id.
13
Supra n. 10, pp. 15.
 (i). A risk of grave injury to the physical, mental health of the woman.
(ii). If the pregnancy is caused by rape
(iii). There exists a substantial risk that if the child was born it would suffer from physical
mental abnormalities.
(iv). Failure of any device or method used by the married couple for the purpose of
limiting the number of children.
(v). A risk to the health of the pregnant woman by a reason of her actual or
reasonably foreseeable environment.

1.2.2. Supreme Court in the case of Jacob George v. State of Kerala14, in which the Supreme Court
observed as that "Life is said to be the most sublime creation of God. It is this belief and
conception which lies at the root of the arguments, and forceful at that, by many
religious denominations that human beings cannot take away life, as they cannot give life.”

1.2.3. What was implicit in section 31215 of IPC, 1860 is explicit in the section 3 16 of MTPA, 1971
i.e. to protect the physical and mental health of the pregnant woman and the child in the
womb. Constitutionality of the provisions of IPC, 1860 and MTPA, 1971 were challenged in
Nand Kishore Sharma & Ors v. Union of India & Anr 17. Observations of the Hon’ble Court
in this case were as under:
“ 6. It would appear that dominant object to achieve which the law has been
enacted is to save the life of the pregnant woman or to relieve her of any injury
toward physical and mental health or prevent the possible deformities in the
child - to be born. We find support from the Statement of Objects and Reasons of
the Act, the relevant portion of which reads as under:
"There is thus avoidable wastage of the mother's health, strength and,
sometimes, life. The proposed measure which seeks to liberalize certain existing
provisions relating to termination of pregnancy has been conceived
(1) as a health measure - When there is danger to the life or risk to physical or
mental health of the woman;
(2) on humanitarian grounds - Such as when pregnancy arises from a sex crime

14
(1994) 3 SCC 430.
15
Supra n. 10, pp. 15.
16
Supra n. 11, pp. 15.
17
AIR 2006 Raj. 166.
 like rape or intercourse with a lunatic woman, etc.;
(3) eugenic grounds - Where there is substantial risk that the child, if born,
would suffer from deformities and diseases."
7.The object of the Act being to save the life of the pregnant woman or relieve
her of any injury to her physical and mental health, and no other thing, it would
appear the Act is rather in consonance with Article 21 of the Constitution
of India than in conflict with it.”

1.2.4. Supreme Court in the case of Jacob George v. State of Kerala18, observed as under that life is
said to be the most sublime creation of god. It is this belief and conception which lies at the
root of the arguments, and forceful at that, by many religious denominations that human
beings cannot take away life, as they cannot give life.

1.2.5. In Vinod Soni v. Union of India 19, the Bombay High court observed that the right to personal
liberty cannot expand by any stretch of imagination to liberty to prohibit coming into
existence of a female fetus or male fetus, which shall be for the Nature to decide.

1.2.6. It is also humbly submitted that, the relief sought by the Petitioner to allow abortion as a
matter of right cannot be entertained because it will affect the morality and public policy and
that is the reason restrictions are placed on the law of abortion. Women who are not allowed
to abort the fetus cannot be equated with the woman allowed because conditions of both the
woman are different and the constitution of India under Article 14 20 never contemplates to
treat unequal’s as equals. Article 1421 of the Constitution of India does not guarantee absolute
equality, what it guarantees is similarity of treatment and not identical treatment.

1.2.7. In Basheshar Nath v. The Commissioner of Income Tax 22, it was observed that
Fundamental rights have not been put in the Constitution merely for the individual benefit
though ultimately they come into operation for protection of individual rights. They
have been put there as a matter of Public Policy and doctrine of waiver can have no
18
(1994) 3 SCC 430.
19
2005 CriLJ 3408.
20
Constitution of India, 1950, Art. 14. Equality before law: The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.
21
Id.
22
1959 AIR 149.
 application to provisions of law which have been enacted as a matter of constitutional policy
but statutory Rights, which have been conferred only for the benefit of individual, can be
waived.
In this case the court clearly differentiated the rights which have been incorporated for
societal benefits and rights incorporated for individual benefit. The Right of Abortion is
a matter of public conscience and large number of people are affected.

1.2.8. The Provisions of IPC, 1860 and MTPA, 1971 complement each other and are not
unconstitutional because they have been framed for the safety of the woman and the fetus and
for the larger Interests of the society. Therefore, do not infringe the fundamental right of the
woman under Article 1423 and Article 2124 of the Constitution of India.

ISSUE NO. 2: Does fundamental right of privacy give unfettered right to women over
rights of unborn child with disability? Fundamental right to privacy of
mother v. disability rights of unborn child.

In the present case, the Petitioner wants to abort her 22 weeks old fetus. The doctors
have opined that there are fair chances of child being born with Congenital Heart Disease
(hereinafter CHD) and would require to live in support of pacemaker. The Petitioner claims
that every woman has an ‘absolute right’ over her body and is entitled to decide abortion of
her pregnancy at any stage before birth. Subsequently, the Petitioner wants to abort the
‘disabled unborn child’. The Petitioner also cites that giving birth to a child would put a no
dischargeable economic burden. We will consider each contention one by one now.

2.1. Do women have absolute right to privacy and can decide abortion of their pregnancy at
any stage before birth?
2.1.1. In India, various provisions of IPC, 1860, MTPA, 1971 and PNDT, 1994, regulate abortion.
Abortion can be performed only according to the specific provisions contained in these

23
Supra n. 20, pp. 17.
24
Supra n. 1, pp. 13.
 statues otherwise it is illegal and punishable offence under sections 312 25, 31326, 31427, 31528,
31629, 31730 and 31831 of IPC, 1860.

2.1.2. Recently, on September 26th, 2018, Hon’ble Supreme Court in Justice K.S. Puttaswamy
(Retd) v. Union of India32 decided on 26 September 2018 observed as under
“188. (C) Privacy is a constitutionally protected right which emerges primarily
from the guarantee of life and personal liberty in Article 21 of the
Constitution ...188. (E) Privacy is the constitutional core of human dignity.” and
Justice Chelameswar held “231...Fundamental rights are the only constitutional
firewall to prevent State's interference with those core freedoms constituting

25
Supra n. 10, pp. 15.
26
Indian Penal Code, 1860, s. 313. Causing miscarriage without woman’s consent: Whoever commits the
offence defined in the last preceding section without the consent of the woman, whether the woman is quick
with child or not, shall be punished with 1[imprisonment for life], or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
27
Indian Penal Code, 1860, s. 314. Death caused by act done with intent to cause miscarriage : Whoever,
with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman,
shall be punished with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine; If act done without woman’s consent.—And if the act is done without the consent of the
woman, shall be punished either with [imprisonment for life], or with the punishment above mentioned.
Explanation.—It is not essential to this offence that the offender should know that the act is likely to cause
death.
28
Indian Penal Code, 1860, s. 315. Act done with intent to prevent child being born alive or to cause it to
die after birth: Whoever before the birth of any child does any act with the intention of thereby preventing that
child from being born alive or causing it to die after its birth, and does by such act prevent that child from being
born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of
saving the life of the mother, be punished with imprisonment of either description for a term which may extend
to ten years, or with fine, or with both.
29
Indian Penal Code, 1860, s. 316. Causing death of quick unborn child by act amounting to culpable
homicide: Whoever does any act under such circumstances, that if he thereby caused death he would be guilty
of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Illustration A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused
the death of the woman, would amount to culpable homicide. The woman is injured but does not die; but the
death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined
in this section. classification of offence punishment—imprisonment for 10 years and fine—cognizable—non-
bailable—Triable by Court of Session—Non-compoundable.
30
Indian Penal Code, 1860, s. 317. Exposure and abandonment of child under twelve years, by parent or
person having care of it: Whoever being the father or mother of a child under the age of twelve years, or
having the care of such child, shall expose or leave such child in any place with the intention of wholly
abandoning such child, shall be punished with imprisonment of either description for a term which may extend
to seven years, or with fine, or with both. Explanation.—This section is not intended to prevent the trial of the
offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.
31
Indian Penal Code, 1860, s. 318. Concealment of birth by secret disposal of dead body:
Whoever, by secretly burying or otherwise disposing of the death body of a child whether such child
die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such
child, shall be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
32
Writ Petition (Civil) No. 494 of 2012 in the Hon’ble Supreme Court of India
 liberty of a human being. The right to privacy is certainly one of the core
freedoms, which is to be defended. It is part of liberty within the meaning of that
expression in Article 21.” and Justice Dr. D.Y. Chandrachud in “229…. A
woman's freedom of choice whether to bear a child or abort her pregnancy are
areas which fall in the realm of privacy.”

2.1.3. However, in the same above-mentioned case, Justice Chelameswar observed, “It goes
without saying that no legal right can be absolute. Every right has limitations. …. Therefore,
even a fundamental right to privacy has limitations. The limitations are to be identified
on case-to-case basis depending upon the nature of the privacy interest claimed.” Further,
Justice Dr. D.Y. Chandrachud laid down the requirements in case of restraint on right to
privacy by state at held that
“180. These three requirements apply to all restraints on privacy (not just
informational privacy). They emanate from the procedural and content-
based mandate of Article 21. The first requirement that there must be a law in
existence to justify an encroachment on privacy is an express requirement of
Article 21. For, no person can be deprived of his life or personal liberty
except in accordance with the procedure established by law. The existence of
law is an essential requirement. Second, the requirement of a need, in terms of a
legitimate State aim, ensures that the nature and content of the law which
imposes the restriction falls within the zone of reasonableness mandated by
Article 14, which is a guarantee against arbitrary State action. The pursuit of a
legitimate State aim ensures that the law does not suffer from manifest
arbitrariness. Legitimacy, as a postulate, involves a value judgment. Judicial
review does not reappreciate or second guess the value judgment of the
legislature but is for deciding whether the aim which is sought to be pursued
suffers from palpable or manifest arbitrariness. The third requirement ensures
that the means which are adopted by the legislature are proportional to the
object and needs sought to be fulfilled by the law. Proportionality is an essential
facet of the guarantee against arbitrary State action because it ensures that the
nature and quality of the encroachment on the right is not disproportionate to
the purpose of the law. Hence, the threefold requirement for a valid law arises
out of the mutual interdependence between the fundamental guarantees against
arbitrariness on the one hand and the protection of life and personal liberty, on
 the other. The right to privacy, which is an intrinsic part of the right to life and
liberty, and the freedoms embodied in Part III is subject to the same restraints
which apply to those freedoms.”

2.1.4. As far as Right to Privacy is concerned, there is no dispute now that Constitution of India
provides fundamental right to privacy to its citizens and is a core part of Article 21 33 of the
Constitution of India. In our case, the respondents argue that, this right is not absolute but a
qualified one and state can take away in accordance with law.

2.1.5. In another historical judgment on right to privacy by Hon’ble Supreme Court of the United
States of America in Roe v. Wade34, the court upheld the right to privacy, but at the same is
not absolute and the state can interfere and regulate the freedom for “compelling state
interests”. Justice Blackmun and his brother judges held that “A State may properly assert
important interests in safeguarding health, in maintaining medical standards, and in
protecting potential life. At some point in pregnancy, these respective interests become
sufficiently compelling to sustain regulation of the factors that govern the abortion decision.
The privacy right involved, therefore, cannot be said to be absolute…We, therefore,
conclude that the right of personal privacy includes the abortion decision, but that this
right is not unqualified and must be considered against important state interests in
regulation. With respect to the State's important and legitimate interest in potential
life, the "compelling" point is at viability. This is so because the fetus then presumably
has the capability of meaningful life outside the mother's womb. State regulation
protective of fetal life after viability thus has both logical and biological justifications. If
the State is interested in protecting fetal life after viability, it may go so far as to prescribe
abortion during that period, except when it is necessary to preserve the life or health of the
mother.

2.1.6. The court further expressed its opinion by laying down three trimester tests thereby
balancing the right to privacy of woman and qualified state restrain against it. “(a) For the
stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending

33
Supra n. 1, pp. 13.
34
Supra n. 9, pp. 14.
 physician. (b) For the stage subsequent to approximately the end of the first trimester, the
State, in promoting its interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health. (c) For the stage
subsequent to viability, the State in promoting its interest in the potentiality of human life
may, if it chooses, regulate, and even prescribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother.”

2.1.7. Thus, claim of the Petitioner that a woman has absolute right over her body and can decide
to abort at any moment of her pregnancy is overshadowed by the relevant provisions of IPC,
1860, MTPA, 1971 and PNDT, 1994 Act which regulate abortions in India and provide
qualified checks on this right. The Petitioner in this case has been carrying child in womb for
last 21 weeks without any hindrance. If she intended to not carry a child, she could have
aborted it at earliest possible moment. However, in the present case she wanted to have
child. Only because the child has been predicted to be born with CHD and would have to
live with disability, cannot be a legitimate ground. The social stigma associated with
disability needs to be dealt in larger society’s interest and state has a duty to protect the
rights of persons with disability.

2.2. Rights of Persons with Disability, state obligations and steps taken in this regard
2.2.1. Union of India passed The Rights of Persons with Disability Act, 2016 (hereinafter referred
to as RPWD, 2016) to give effect to the United Nations Convention on the Rights of Persons
with Disabilities, 2016 (hereinafter to be referred as UNCRPD, 2016) and for matters
connected therewith or incidental thereto. The United Nations General Assembly adopted
UNCRPD, 2006 on the 13th day of December, 2006; the convention lays down these
principles for the empowerment of persons with disabilities,—
(a) respect for inherent dignity
(b) non-discrimination
(c) full and effective participation and inclusion in society
(d) respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity
(e) equality of opportunity
(f) accessibility
(h) respect for the evolving capacities of children with disabilities and respect for the right of
 children with disabilities to preserve their identities

2.2.2. The various articles of UNCRPD, 2016 recognizes the right of persons with disability to
enjoy all human right and fundamental freedoms on equal basis with others35. It includes
Right to Life36 of the disabled persons. The convention prohibits discrimination on the basis
of birth37. In accordance with UNCRPD, 2016, RPWD, 2016 also prohibits discrimination 38
and provides equality39 to with other persons for enjoyment of rights.

2.2.3. Though, the Constitution of India does not mention the rights of Persons with
Disability (hereinafter PWD) in express terms, Hon’ble Supreme Court in various cases
has recognized the rights of persons with disability.

2.2.4. Right to life of persons with disability a part of Article 21 of the Indian constitution:
In Jeeja Ghosh & Another v. Union of India & Ors.40 the Apex Court held,
“37. The rights that are guaranteed to differently-abled persons under the 1995
Act, are founded on the sound principle of human dignity which is the core
value of human right and is treated as a significant facet of right to life and
liberty. Such a right, now treated as human right of the persons who are
disabled, has its roots in Article 21 of the Constitution.”
In order to make the above judgment fructuous and extend right to life with dignity to the
disabled persons, honorable Supreme Court in various case laws held entitlement of disabled

35
United Nations Convention on the Rights of Persons with Disabilities, 2006, Art. 1. Purpose: The
purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human
rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent
dignity.
36
United Nations Convention on the Rights of Persons with Disabilities, 2006, Art. 10. Right to life: States
Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to
ensure its effective enjoyment by persons with disabilities on an equal basis with others.
37
United Nations Convention on the Rights of Persons with Disabilities, 2006, Art. 3. General Principles:
The principles of the present Convention shall be: (b) Non-discrimination; (p) Concerned about the
difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of
discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic,
indigenous or social origin, property, birth, age or other status,
38
Rights of Persons with Disability Act, 2016, s. 3(3). Rights and Entitlements: No person with disability
shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a
proportionate means of achieving a legitimate aim.
39
Rights of Persons with Disability Act, 2016, s. 3(1), Rights and Entitlements: The appropriate Government
shall ensure that persons with disabilities enjoy the right to equality, life with dignity and respect for his or her
integrity equally with others
40
Writ Petition (C) No. 98 Of 2012 in the Hon’ble Supreme Court.
 persons on an equal basis with others.

2.2.5. Right to education of a disabled child

In Social Jurist v. Government of NCT of Delhi & Anr. 41, Court recognized the right of
disabled child to free and inclusive education under Right to Education Act, 2009.

2.2.6. Right to food and other rights of persons with disability

In People’s Union for Civil Liberties v. Union of India & Others 42, this Hon’ble Court
observed that Right to food and other rights under Article 21 43 indirectly cover persons with
disability.

2.2.7. Reservations for ensuring employment opportunities of PWD

In Indra Sawhney V. Union of India44, the court observed,
“The reservations in favour of Scheduled Castes, Scheduled Tribes and other
backward classes [under Article 16(4)] may be called vertical reservations
whereas reservations in favour of physically handicapped [under Clause (1)
of Article 16] can be referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations that is called inter-locking
reservations. To be more precise, suppose 3% of the vacancies are reserved in
favour of physically handicapped persons; this would be a reservation
relatable to Clause (1) of Article 16.”
Thus, it is evident that persons with disability are treated as equals to other people. The
Indian state has adopted several measures for safeguarding the rights of the PWD so that they
can live their life with dignity and realize their potential without any hurdle.

2.3. Whether unborn child or fetus has a right to life and protected by law?
2.3.1. As far as status of right to life of unborn child or fetus is concerned, it is ambiguous and
uncertain. This question involves medical, ethical, moral, social, religious and other
varied opinions which never conform and find any common ground.

2.3.2. However, the express provisions of PCPNDT Act has banned sex selective abortions i.e.
41
CWP No. 4400/02 in the Hon’ble Delhi High Court.
42
WPC No. 196/2001in the Hon’ble Supreme Court of India.
43
Supra n.1, pp.13.
44
1992 Supp (3) SCC.
 abortion on the basis of gender. Some nations across world have recognized rights to life of
unborn child at par with a living child45. Some states of United States of America have
banned abortion on the basis of disability of child and race along with gender.46

2.3.3. In Sarmishtha Chakrabortty v. Union Of India Secretary47 relied upon opinion of medical
experts and allowed to terminate 20 weeks 5 days fetus with congenital heart disease in
which medical experts were of the opinion that chances of morbidity of child after birth while
operations will be very high and risk to mother is also a lot. Court was of the opinion that to
decide when to allow abortion and when not in such cases is a matter of fact and has to be
decided on a case to case basis and on the opinion of the medical experts.

2.3.4. In S.K Gupta v. Union Of India & Others 48, the Hon’ble Rajasthan High Court held that the
‘compelling interest in saving the girl child’ outweighs the woman's right to privacy and
stated that all “conceived children” must be treated with dignity.

2.3.5. Apart from the above case laws, some legislations like section 13 49 of Transfer of Property
Act, 1882 allows transfer of property in name of unborn child, section 114 50 of the Indian

45
Chile (article 19), Philippines (section 12), Zimbabwe (article 48), Uganda (article 23), Slovakia (article 15),
Kenya (article 26).
46
Banning Abortions in Cases of Race or Sex Selection or Fetal Anomaly, Guttmacher Institute (February 26,
2019) available at https://www.guttmacher.org/evidence-you-can-use/banning-abortions-cases-race-or-sex-
selection-or-fetal-anomaly (last visited November 12, 2019).
47
Writ Petition (C) No.431 Of 2017 in the Hon’ble Supreme Court of India.
48
PIL no. 3270/2012 in the Hon’ble Rajasthan High Court.
49
Transfer of Property Act, 1882, s. 13. Transfer for benefit of unborn person: Where, on a transfer of
property, an interest therein is created for the benefit of a person not in existence at the date of the transfer,
subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not
take effect, unless it extends to the whole of the remaining interest of the transferor in the property. Illustration
A transfers property of which he is the owner to B in trust for A and his intended wife successively for their
lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death
for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does
not extend to the whole of A’s remaining interest in the property.
50
Indian Succession Act, 1925, s. 114. Rule against perpetuity: No bequest is valid whereby the vesting of
the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death
and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he
attains full age, the thing bequeathed is to belong.
Illustrations:
(i) A fund is bequeathed to A for his life and after his death to B for his life; and after B’s death to such
of the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first
attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than
18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be
delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B’s death is void.
(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and after B’s death to
such of B’s sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons.
In this case the sons of B are persons living at the time of the testator’s decease, and the time when either of
 Succession Act, 1925 provides for creation of prior interest in favor of unborn child etc. but
all of these rights can be enjoyed only after the birth or attainment of majority only i.e. these
rights are contingent.

2.3.6. The Hon’ble Supreme Court, in plethora of judgments has maintained that termination of
pregnancy has only to be allowed where there is threat to life of the woman or unborn child
in accordance with the provisions of the MTPA, 1971 and in no other way.

2.3.7. The Ministry of Women and Child Development, Government of India & Ministry of Health
and Family Welfare, Government of India, through various schemes provides all round
coverage for protection of mother and unborn child in order to check infant mortality rate and
maternal mortality rate. Thus, it can be summed up that there does not exist a recognized
right of life unborn child in India, but the approach has remained to protect the unborn child
as well as mother. Protecting life has been of utmost importance. It is striking a balance
between two has been the norm in various judicial decisions.

2.4. Why life of the unborn child with disability should be protected?
2.4.1. India is a socialist & welfare state, and it is incumbent upon her to protect the rights of the
marginalized sections of the society. The persons with disability have been recognized as
equal human beings through various judicial precedents (abovementioned). The Indian state
has been making sincere efforts through legislation like RPWD, 2016 in which, important
necessities of life like education, healthcare, housing, employment opportunities,
accessibility of environment, financial support like loans and prohibition from discrimination
and protection against violence has been provided as matter of legal right. Also, a number of
schemes is run by government to augment and realize implementation of these rights.
Complimenting this, various courts of the country too have fostered support to the PWD by
extending their legal rights.
them will attain 25 necessarily falls within his own lifetime. The bequest is valid.
(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after
B’s death it shall be divided amongst such of B’s children as shall attain the age of 18, but that, if no child of B
shall attain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest at
the expiration of 18 years from the death of B, a person living at the testator’s decease. All the bequests are
valid.
(iv) A fund is bequeathed to trustees for the benefit of the testator’s daughters, with a direction that, if
any of them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of
her children as shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in
existence at his decease, and any portion of the fund which may eventually be settled as directed must vest not
later than 18 years from the death of the daughters whose share it was. All these provisions are valid.
2.4.2. In Savita Sachin Patil And Anr. v. Union Of India And Ors 51., The Hon’ble Supreme Court
bench, consisting of Justice Shri S.N. Bobde and Justice Shri L.N. Rao did not allow abortion
of a 26 week old fetus of a 37 year old mother who wanted to abort because child was
likely to be born with down syndrome52(detected in 22nd week & reached supreme court in
24th week). The family already had a disabled child in family. As it was over 20 weeks and
there was no threat to life of the mother (as per medical opinion) which is a precondition to
claim abortion under MTPA, 1971, court did not allow aborting. T he bench observed,
“Though everybody knows that children with Down syndrome are undoubtedly less
intelligent, they are fine people…..It is sad that the child may suffer from physical and mental
challenges and it’s unfortunate for the mother but we can’t allow and abortion…we have a
life in our hand.”

2.4.3. In Nikhil D. Dattar v. Union of India 53, section 354 and section 555 of MTPA, 1971 were
challenged on the ground of non-inclusion of eventualities vires of the act. In this case the
fetus was diagnosed for complete heart block thus the Petitioner, in her 26th week of
pregnancy, had sought termination of pregnancy. The Petitioner contended that section

51
Writ Petition (Civil) No. 121 of 2017 in the Hon’ble Supreme Court of India.
52
Down Syndrome/Trisomy 21: A congenital disorder arising from a chromosome defect, causing intellectual
impairment and physical abnormalities including short stature and a broad facial profile. It arises from a defect
involving chromosome 21, usually an extra copy.
53
SLP No(s). 5334/2009.
54
Supra n.11, pp.15.
55
Medical Termination of Pregnancy Act, 1971, s. 5. Sections 3 and 4 when not to apply:
(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the
length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to
the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in
good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant
woman.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy
by a person who is not a registered medical practitioner shall be an offence punishable with rigorous
imprisonment for a term which shall not be less than two years but which may extend to seven years under that
Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable
with rigorous imprisonment for a term which shall not be less than two years, but which may extend to seven
years.
(4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be
punishable with rigorous imprisonment for a term which shall not be less than two years, but which may extend
to seven years.
Explanation 1.-For the purposes of this section, the expression "owner" in relation to a place means any person
who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place,
by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.-For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to
the possession, by registered medical practitioner, of experience or training in gynecology and obstetrics shall
not apply.
 5(1) of the MTPA, 1971 should be read down to include the eventualities in section 3 56 of the
MTPA, 1971 and consequently, a direction should be issued to the respondents to allow the
Petitioner to terminate the pregnancy. The court held that the courts are not empowered to
legislate upon a statute. Sections 357 and 558 of the MTPA, 1971 provide for right to terminate
pregnancy only under the specified circumstances and the remedy under section 5 59 of the
MTPA, 1971 can only be available when the non-termination of pregnancy would be
dangerous to the life of pregnant woman. While dismissing the petition the court further held
that since twenty-six weeks of pregnancy has already passed the court could not pass any
direction for exercise of right under section 360 of the MTPA, 1971.

2.4.4. From the above case laws preceding discussion so far, it is clear that position of the court has
remained sympathetic towards both women and the disabled child in fetus. However, time
and again courts have reiterated that it is a matter of policy to be decided by the parliament
alone, as there is neither any international consensus nor consensus at national level
regarding recognizing rights of unborn fetus and personhood of it or absolute right of
abortion of a woman.

2.4.5. From the above discussions, there seems no reason why state should refrain from saving the
lives of unborn disabled children just like that of female child. If it is allowed to abort a
disabled unborn child it will lead to further discrimination, marginalization & stigmatization
of the PWD.

2.5. Claim of economic hardship faced by woman if child is born

2.5.1. Petitioner claims that she will have extra burden on her, and she is economically weak, there
are several welfare mechanisms put in place by the Union of India, state governments
and non-governmental organizations which specifically caters to her needs.

2.5.2. The main contention claimed by Petitioner is that of economic hardship due to
periodical changing of pacemaker61 The surgery for installing pacemaker and the device both

56
Supra n.11, pp.15.
57
Id., pp. 27.
58
Supra n.55, pp. 27.
59
Id.
60
Supra n.11, pp.15.
61
Pacemaker is a medical device implanted through cardiac surgery into chest of patients for regulating
heartbeat or rhythm. It is used for maintaining normal heart rate or heart rhythm. The average cost of
 are available for free of cost at most of the state-owned tertiary care hospitals owned by
central & state governments. Government of NCT of Delhi recently, allowed for free
treatment of the same at any private super specialty hospital in case of waiting list in
government owned hospitals. Many state governments have been provided All India Institute
of Medical Sciences (AIIMS) by Ministry of Health & Family Welfare, Govt. of India in
states where there is lack of tertiary care hospitals under Pradhan Mantri Swathya Suraksha
Yojana (PMSSY). Under new flagship scheme of Ayushmaan Bharat- Pradhan Mantri Jan
Arogya Yojna (ABPMJAY), the families from poor background have been provided with
financial assistance at the hospitals itself. Rashtriya Arogya Nidhi (RAN) has been registered
as society through notification by Ministry of Health & Family Welfare, Govt. of India
with a revolving fund with a maximum assistance of up to Rs. 15 lakhs and can be availed by
poor families from tertiary care hospitals through Medical Superintendent empowered in that
behalf to provide grant. It specifically covers the cost of pacemaker and cardio surgeries.

2.5.3. Some civil society organizations like Child Heart Foundation, Shri Satya Sai Sanjeevani
Centre for Child Heart Care, Saving A Child Heart Initiative (SACHI) by Apollo etc.
specially work for helping children of poor families suffering from CHD by providing
medical facilities for free of cost.

2.5.4. The state in addition to this, has taken various measures to promote contraception and
Adoption. If the Petitioner does not want to raise child, she can give the child for adoption
under Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) and Adoption
Regulations, 201762 framed by Central Adoption Resource Authority (CARA).

pacemaker in India is between 45,000 to 1.5 lakhs. Pacemakers of higher quality or best quality may cost up to
Rs. 3 lakhs.
62
Adoption Regulations, 2017, s. 7. Procedure relating to a surrendered child: (1) A parent or guardian
wishing to surrender a child under subsection (1) of section 35 of the Act, shall apply to the Child Welfare
Committee in the Form 23 of Juvenile Justice (Care and Protection of Children) Model Rules, 2016. 4. Child
eligible for adoption.- The following shall be eligible for adoption, namely:- (a) any orphan or abandoned or
surrendered child, declared legally free for adoption by the Child Welfare Committee;
 ISSUE NO. 3: Should abortion be permitted on the test of feasibility of life with
dignity and not on the basis of period of pregnancy or viability of life
outside the womb?

3.1. There is a compelling state interest in protecting the life of a prospective child.
3.1.1. It is submitted that, That the existing law of India in the IPC, 1860, acknowledges that an
embryo is entitled to legal protection and the unborn child‘s right to life is evident from
section 31563 of the code. Section 31264 of IPC, 1860, provides punishment of imprisonment
of either description for a term, which may extend to seven years, and shall also be liable to
fine to the woman causing miscarriage to a child. By treating the act of procuring an abortion
as an offence, an implicit protection has been provided to the fetal right.

3.1.2. That, according to PNDT, 1994, Section 2(bc)65 defines Fetus as a human organism
during the period of its development beginning on the fifty-seventh day following
fertilization or creation. The question arises whether the fetus has life or not because the life
of a child depends upon the life of a fetus. According to Dr. Bhavani Prasad Panda,
biologically, from the moment of conception, the life starts.

3.1.3. In Webster v. Reproduction Health Services 66, the Supreme Court of America upheld a
Missouri Statute, which declared that the life of each human being begins at conception and
that unborn children have protectable interests in life, health and wellbeing.

3.1.4. In Davis v. Davis67, the Judge concluded that as a matter of law, human life begins at
conception.

3.1.5. In Tagore v. Tagore68, the Hon’ble Apex Court observed that an infant in the womb is a
person in existence for the purpose of making a gift to unborn person.

63
Supra n. 28, pp. 19.
64
Supra n. 10, pp. 15.
65
Pre- Natal Diagnostic Techniques Act, 1994, s. 2(bc). “fetus” means a human organism during the period
of its development beginning on the fifty-seventh day following fertilization or creation (excluding any time in
which its developmenthas been suspended) and ending at the birth.
66
492 U.S. 490 (1989).
67
842 S.W.2d 588, 597 (Tenn. 1992).
68
(1872) 9 Beng. L.R. 337.
3.1.6. In Jabbar v. State 196669, the Hon’ble Allahabad High Court observed that the term ‘Person’
would include an unborn child in the mother’s womb after 7 months of pregnancy, which
means it is capable of being spoken as a person.

3.1.7. There are some protections given to an unborn child under certain legislations:
(i). Transfer of Property Act- Section 1370 provides for transfer of property as an act by
which a living person conveys property to other living person. But there are certain
exceptions to it where an interest in the property can be created in favour of an unborn person
though subject to some conditions.
(ii). Hindu Laws- Law of partition has given a special place to unborn child. A son who
was in his mother's womb at the time of partition is entitled to a share, though born after
partition.
(iii). Criminal Laws- According to Cr.P.C if a woman, to whom death sentence has
been given, is pregnant, then the High Court shall postpone the execution of the sentence and
may commute the sentence to imprisonment for life. This code directly protects the fetus by
postponing the death sentence, but this power is only vested with the High Court.

3.1.8. It is therefore submitted that, in Suchita Srivastava And Another v. Chandigarh

Administration71 It was held that, in the case of pregnant women there is also a 'compelling
state interest' in protecting the life of the prospective child.”

3.1.9. In the Abortion Reform Law Case (1975)72, The West German Constitutional Court laid
down the following propositions:
(i). It is the duty of the State to protect and promote the life of the fetus and defend it
from unlawful interference by another person;
(ii). The right of development accrues in the fetus from the mother's womb and is not
complete even after birth
(iii). If the fetus was considered only as a part of the maternal organism, the termination of
pregnancy would remain entirely in the sphere of private life, not warranting public

69
CriLJ 1363.
70
Supra n. 49, pp. 25.
71
Supra n. 8, pp. 14.
72
BVerfGE 39,1 in the Federal Constitution Court of Germany
 interferences. But because the fetus is "an autonomous human being" under the protection of
the Constitution, the termination of pregnancy has a social dimension which demands public
regulation;
(iv). The Constitution also protects a woman's right to free development of her personality,
which includes freedom to decide against parenthood. But this right is not guaranteed without
limitations. The right of others, the constitutional order, and the moral code all restrict it;
(v). A compromise which guarantees both the protection of fetus as well as the freedom of
abortion of a pregnant woman is impossible because the termination of pregnancy always
means ‘destruction of unborn life’. The legal order cannot, therefore, make a woman's
self- determination, the principle of its regulations. On the other hand, the protection of fetus
must be given priority to the woman's right of self-determination;
(vi). The State is to effectively fulfil its duty to protect the "developing life.'' In discharging
this duty, the State is to make a reasonable adjustment between unborn right to life and the
woman's right to her own life and health. The unborn's right to life can lead to burdens for the
woman which sharply exceed those of a normal pregnancy. In such a case, the State may
exempt the pregnant woman from punishment for destroying the fetus where there is a
necessity to protect the pregnant woman from a threat to her life or a threat of a serious
impact on her health or other cases, where the burden is extraordinary;

3.1.10. The Indian judiciary has given miscellaneous indications regarding the rights of the unborn.
However, the trends affirm positivity in respect of fetus right. The following cases have
strongly recommended the recognition of claims of unborn:
(i). Oriental Insurance Co. Ltd v. Santhilal Patl and Anr.73
(ii). Shraddha v. Badresh and Ors74

3.1.11. It is further submitted that, India has also ratified the UNCRPD, 2006 that came into force on
May 3, 2008. Under the convention, the parties are required to promote, protect, preserve and
ensure the full enjoyment of human rights by persons with disabilities and to promote respect
for their inherent dignity. The central government has also initiated steps towards the
development of such person. Multiple national schemes have been initiated for the protection
of such people.

73
2007 (4) ALD 855.
74
2006 ACJ 2067.
 3.2. Should abortion be permitted on the basis of period of 20 weeks?
3.2.1. The legislature in its own wisdom has incorporated very strict conditions for carrying out
abortions keeping in mind that the state is morally and duty bound as guardian of its citizens
and has the parens patriae power to safeguard the life of the child in the womb after it has
attained the stage of viability. Modern technologies have made it possible to detect fetal
abnormalities as such anencephaly prior to 20 weeks.

3.2.2. The right to reproductive autonomy does not outweigh the interest of the state in protecting
the life of a fetus in the womb, especially from the time of viability i.e. from the period of 20
weeks onwards. It is settled law that personal freedom or choice of individual cannot curtail
the freedom or choice of other individuals, especially the most vulnerable and persons who
are defence less. Unborn child cannot protect itself from the harm designed by his/her own
mother.

3.2.3. It is retaliated that the legislature in its collective wisdom prescribed the ceiling of 20 weeks
under MTPA, 1971, after much deliberation and discussion. furthermore, the ceiling of 20
weeks is prescribed in MTPA, 1971 because inter alia the fetus is viable from the said
period. It is reiterated that the advancement in technology, has made it possible to detect fetal
abnormalities even prior to 20 weeks.

3.2.4. That several studies have found in every case where fetal abnormalities were detected
carrying the pregnancy to term help mother cope better with the loss and anguish, as they
felt that they had done everything within their power to give the child a chance of survival
and access to the best medical treatment available.

3.2.5. In R and Anr V. State of Haryana & Ors 75, decided on 30 May 2016 by the Hon’ble Punjab
and Haryana High Court, it was held that termination of pregnancy at the stage, that is 22
weeks of gestation, will be harmful to the life of patient i.e. the mother. This case is a fine
example that shows the legislature intention is in the interest of the mother’s life, and thus
MTPA, 1971 in all totality is not violative of the Petitioner’s fundamental rights. Hence, the
provisions of the MTPA, 1971 can also be viewed as reasonable restrictions that have been
placed on the exercise of reproductive choices.

75
CWP-6733-2016 in the Hon’ble Punjab and Haryana High Court.
3.2.6. It is most humbly submitted that due to modern technological advancement in pre-natal
screening, many fetal defects can now be discovered much earlier through genetic testing
such as sampling mothers’ blood chorionic villus sampling (CV) amniocentesis that would
lead to the decision to pursue further genetic testing. It is submitted that most mothers are
advised to undergo first sonography test at 10 to 12 weeks. It is also clarified that several
studies have held that even abnormality defect can be detected before 20 weeks provided that
mothers first sonography test at time of 10 to 12 week.

3.2.7. As an analogy it is submitted that even self-determination is not right since a person cannot
kill himself just because he is of opinion that he is going to die anyway in future. It is
absolutely abhorrent and legally unjustifiable for this Hon’ble Court to sanction murder of
child who is viable.
 FINAL SUBMISSION:
It is evident from above presented arguments that Fundamental right to privacy as
claimed by the Petitioner in this case is not an absolute right just like any other fundamental
rights and it is subject to reasonable restrictions by the state for the ‘compelling state
interest’. It is this reasonable restriction imposed in its wisdom by the legislature that led to
enactment of MTPA, 1971 for prohibiting abortion for any reason other than medical reasons
and as specified in the statute. This statute was enacted in 1971, even before USA could settle
its position on abortion law. This shows the progressive vision our Parliament had. As held in
a plethora of cases, the parliament is endowed with duty of law making and not judiciary as
otherwise it would be a violation of the doctrine of separation of power. And the matter of the
fact is that recently, the parliament is in the process of amending section 3 76 of existing
MTPA, 1971 under Medical Termination of Pregnancy Amendment Bill 2014 draft, which
seeks to prolong the upper gestation limit for legal medical termination of pregnancy to 24
weeks.
In the present case, there is no threat to life of Petitioner or the unborn child. The
child is likely to be born with CHD, which can be treated, and child can live long as far as
possible in whatever different capabilities it is born with. It is for us to accept the child.
Petitioner has no problem in delivering child if it was not disabled. Therefore, she primarily
needs to be made aware of the rights of persons with disability and needs to come out of
social stigma attached to it. As far as her contentions that she will be burdened economically
to raise child and bear expenses of healthcare is concerned, state has already existing
mechanism to ensure that the child after being born receives high quality healthcare,
education and employment etc. to live life with full dignity and equal opportunity as
mandated by the constitution and RPWD, 2016. And it is duty of the state to protect the life
of the unborn disabled children too like that of a girl child as disabled persons too are
marginalized section of the society and need state support. Abortion on the grounds of gender
and disability should not be permitted. And in the worst scenario if she does not wish to raise
child, she I free to surrender child for adoption. And because of the above-mentioned reasons,
termination of fetus should not be allowed to the Petitioner.

76
Supra n. 11, pp. 15.
 PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited, and arguments
advanced, it is most humbly prayed before this Hon'ble Court that it may be pleased to direct:

1. Dismissal of the appeal of the appellant and uphold the constitutional validity of section 3
of the Medical Termination of Pregnancy Act, 1971.

2. Permission to terminate fetus should not be granted in interest of morality and rights of
disabled people.

3. Pass any other order as the Hon’ble Court may deem fit in the present case.

[Counsel(s) for the Respondents]