The Bombay High Court has ruled that permission from either the High Court or the Supreme Court will have to be taken for terminating a pregnancy over 20 weeks where the woman feels that its continuation would involve risk to her or the fetus mental/ physical health and/or there is substantial risk that the child when born would suffer from abnormalities.

However, permission would not be required from the court for terminating a pregnancy that has crossed the 20-week period, if it poses a risk to the womans life.

The division bench of Justice AS Oka and Justice MS Sonak also directed the government of Maharashtra to constitute medical boards at district levels within three months to examine pregnant women, who wish to terminate their pregnancy beyond 20 weeks.

The court said, “In cases where a registered medical practitioner is of the opinion, formed in good faith, that termination of pregnancy, which has exceeded 20 weeks, is immediately necessary to save the life of the pregnant woman, there is no necessity for even seeking any permission …. Thus, if a doctor is of the opinion that if the pregnancy is not medically terminated immediately the woman may die, then it is the duty of such a doctor to undertake the termination process and the MTP Act provisions will afford immunity to such doctors.”

But if the child is born alive, then the doctor and the hospital concerned will have to assume full responsibility to ensure the baby is offered the best medical treatment. The court held that “Under no circumstances such a child must be neglected or left to perish, particularly where the woman or her family members may not be in a position to or not willing to assume responsibility... in the unfortunate situation where, for several myriad factors, the parents are unwilling or genuinely not in a position to care for the child, then the state government will assume parental responsibility towards such a child.” (Source: PTI, April 4, 2019)

At present, the Medical Termination of Pregnancy (MTP) Act, 1971 permits abortion until 20 weeks of pregnancy under certain conditions as follows:

“(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…”

The Draft Medical Termination of Pregnancy (Amendment) Bill, 2014 released by the Health Ministry, Govt. of India on October 29, 2014, which proposes to amend Section 3 of the MTP Act 1971.

It increases the legal age of termination of pregnancy from 20 weeks to 24 weeks by a registered care provider:

“a. On request of a woman, where the length of the pregnancy does not exceed 12 weeks

1. (i) where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks or

(ii) where the length of the pregnancy exceeds 20 weeks but does not exceed 24 weeks and the woman   falls in one of the categories as may be prescribed, if such health care provider is of the opinion, formed in good faith that –

the continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, or

there is substantial risk that if the child were born, it would suffer from serious physical or mental abnormalities …”

In August 2017, the MTP (Amendment) Bill, 2017 was introduced in the Rajya Sabha. It states: “In section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the Principal Act), in sub-section (2), clause (b), for the word twenty, the words twenty four shall be substituted.”

The Bill states that “During the intervening period after the Act was enforced, several genuine cases have come up where the fact of foetuses with serious risk of abnormalities with grave risk to physical and mental risk to mother had been noticed after twenty weeks. As a result, many women were forced to move the Supreme Court for permission to end pregnancy beyond twenty weeks, leading to lot of mental and financial hardship to such pregnant women..”

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA