Viability argument - Constitutionality of the 20 week limit in MTP Act

Let us now consider the next possible argument that the State may raise in its defence to justify the rational of a 20 week upper limit - Viability of the foetus.

Many countries which have an upper limit on abortion, have it because of the element of viability of the foetus. Viability is that stage from which a foetus becomes capable of surviving outside the womb of the mother. Medically this stage is said to be certain between 26-28th week. ( Stephen M. Krason, Abortion- Politics, Morality and the Constitution, 1984 p. 346) Also, The prospects for babies born before the 24 week limit are usually very poor. ( Study published by British Medical Journal) Thus clearly the argument that the 20 week limit is in support of the viability of the foetus does not hold good.

Even assuming that this limit was valid on grounds of viability of foetus, it would have no bearing on abortion of a foetus on eugenic grounds. Most of the countries which recognize viability of foetus as a ground for placing an upper limit until which abortion may be allowed, do not apply the limit in case the foetus suffers from abnormality. In UK, though the limit is fixed at 24 weeks, abortion is allowed at anytime after the said limit if the foetus is detected with abnormality. ( Section 1(d), Abortion Act, 1967) Similar is the case with other legislations in European countries, South Africa etc.. The reason being that, certain abnormalities such as congenital heart defects can be detected only after the 20th week.(William's Obstetrics, 22nd edition, p. 316) Thus, if a limit was imposed for fetal abnormality, it would have implications for women whose foetus was detected with an abnormality after the limit. Furthermore, even when defects are detected in the 18-20th week, the woman needs to be given enough information and time to help her understand the nature of the fetal abnormality and the probable outcome of the pregnancy in order that she can make an informed decision. Thus for this reason, atleast in the case of foetal abnormality an upper limit on abortion must not be placed.

Hence in a Niketa Mehta like situation where the foetus is detected with a congenital heart problem after the 20th week limit, and the woman wants not to give birth to such a child the provision is discriminating against her.

(Please note -  These arguments should not be miscontrued as a quarrel against equal rights of the handicapped to be born.)

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