Right to terminate an abnormal pregnancy cannot be denied merely because gestation has continued beyond 20 weeks, the Delhi High Court has said while allowing a 25-week pregnant woman's plea to abort her foetus which had enlarged kidneys and was not expected to survive.

A bench of Chief Justice D N Patel and Justice C Hari Shankar said the section of the Medical Termination of Pregnancy Act which prohibits abortion after 20 weeks of pregnancy even if the foetus is abnormal, and the provision which relaxes this restraint if there is an immediate threat to the life of the mother, have to be considered cumulatively and not in isolation.

"Seen thus, we are convinced that, even in a case where the condition of the foetus is, as in the present case, incompatible with life, the rigour of section 3(2) deserves to be relaxed, and the right to terminate the pregnancy cannot be denied merely because gestation has continued beyond 20 weeks. "Law, needless to say, cannot be construed in a manner incompatible with life," the court said Friday and permitted the woman to terminate her pregnancy.

The bench, while allowing her plea, also took into account the report of the medical board constituted by AIIMS on the high court's direction. The woman, in her petition filed through advocate Sneha Mukherjee, had challenged the Constitutionality of sections 3(2)(b) and 5(1) of the Medical Termination of Pregnancy Act, 1971.

While section 3(2)(b) of the Act prohibits termination of a pregnancy of over 20 weeks, section 5(1) allows abortion if there is an immediate threat to the life of the mother. The petition had contended that the 20 weeks stipulation for a woman to avail abortion services under section 3(2) (b) of the Act may have been reasonable when the section was enacted in 1971 but has ceased to be reasonable today where technology has advanced and it is perfectly safe for a woman to abort at any point during the entire period of pregnancy.

"Secondly, determination of foetal abnormality in many cases can only be done after the 20th week and by keeping the ceiling artificially low, women who obtain reports of serious foetal abnormality after the 20th week have to suffer excruciating pain and agony because of the deliveries that they are forced to go through," the plea had said.

The ceiling of 20 weeks is therefore "arbitrary, harsh, discriminatory and violative of Articles 14 and 21 of the Constitution of India", it had contended. The plea had challenged section 5 of the Act to the extent it states that termination of a more than 20-week pregnancy be permitted only if it was immediately necessary to save the life of the mother.

It had claimed that "as written, the MTP Act encourages desperate women, who learn about a foetal abnormality after the 20th week, to seek out unsafe abortions from untrained medical personnel". Illegal abortions are the third leading cause of maternal death in India and account for 13 per cent of maternal deaths worldwide, the petition had said.