03, Feb 2023 | A Legal Researcher

The Bombay High Court in a recent judgement, in the case of ABC vs. State of Maharashtra has allowed a 33 week pregnant woman to terminate her pregnancy under Section 3(2B) of the Medical Termination of Pregnancy Act, 1971(MTP Act) .^[1] Pregnancy can be terminated within 20-24 weeks of pregnancy provided some conditions are fulfilled. It was ground broken by the Supreme Court some months ago, however that has led to courts taking a more liberated view. The Supreme Court, some months ago, in the case of X vs. NCT of Delhi, has ruled that even unmarried women can get their pregnancy terminated under the 20-24 week timeframe as provided under the MTP Act, 1971. Now, since the Bombay High Court’s judgement is also a new interpretation in terms of allowing the pregnancy of 33 weeks to be terminated, it needs to be understood in greater detail.

Facts of the case

When the petitioner underwent a foetal anomaly scan, into 14 weeks of pregnancy, the result was normal i.e. the foetus was healthy. However, at 29 weeks of pregnancy, another scan revealed that the foetus was suffering from microcephaly and lissencephaly, two diseases that require special care for the infant and also might result in life threatening conditions before the child gets to the age of 10. The Medical Board constituted under the MTP Act, 1971 denied the request for termination of pregnancy in view of the advance gestation period which was way more than the “permitted” 24 weeks. The petitioner stated that she is not in a position to take care of the infant born with such conditions. When the petitioner approached the court, the court asked the board to consider the decision once more and answer two issues – whether infant born with these conditions is likely to require extensive and continuous or live long medical intervention; and whether a medical termination of the pregnancy at this stage poses a risk or danger to the Petitioner either physically and mentally and report the condition to the court.  The report tendered to the court stated that the foetal deformity being correctable at government and major municipal Corporation hospitals free of cost and considering the advanced gestational age the Medical Termination of pregnancy is not recommended even on directions of the High Court.

In November 2022, Citizens for Justice and Peace (cjp.org.in) had published a legal resource with an overview of abortion laws.

This article attempted to explain abortion laws in context their origin, development and current status. It also discussed the Medical Termination of Pregnancy Act, 1971 and its subsequent 2021 amendment; a very specific aspect with respect to the Indian legal system. This article then also explored the November 2022, three judge bench decision of Supreme Court of India in X vs Principal Health Secretary, NCT of Delhi and compared it with Dobbs vs Jackson Women’s Health Organization, a diametrically opposite verdict of the SCOTUS (Supreme Court of the United States).

Legislation

Section 3 of the MTP act, states that any registered medical practitioner will not be guilty under Indian Penal Code, if the termination is carried under certain conditions. The conditions are that if the pregnancy is 20 weeks old, with the opinion of one registered medical practitioner; and if the pregnancy is 24 weeks old, with the opinion of two registered medical practitioners. And there are only two opinions which would matter- one is that 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 that there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Section 3(2B) of the act states as follows:

“The provisions of sub-sections (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.”

Arguments

First, the petitioners argued that the court is not bound by the medical board’s recommendation.

Secondly, the petitioners argued that Section 3(2B) does not explicitly talk about late detection of foetal abnormalities and therefore, Court’s writ jurisdiction is invoked. It was argued that the Medical Board is not entitled to a discretionary advisory position under the law on whether a termination can be performed or not. It only had to assess whether there is a substantial foetal abnormality and if medical termination is safe on an assessment of the mother’s mental and physical health.

It was also argued that uncertainties of pregnancy and parturition can sometimes confront a woman very late in her pregnancy with having to make a choice she never anticipated and that no Medical Board can wander outside the remit of the statute that creates it.

Judgement

The judgement borrowed the values to interpret the MTP Act from the judgement given by the Supreme Court in the X vs. NCT case only recently. The court stated as follows, regarding the Medical Board not recommending for termination due to a delay of 7-8 weeks:

“In refusing a medical termination of pregnancy only on the ground of delay, this Court would not only be condemning the foetus to a less than optimal life but would also be condemning the Petitioner-mother to a future that will almost certainly rob her of every positive attribute of parenthood. It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today that there is no possibility of having a normal healthy baby at the end of this delivery.”

The court interpreted Section 3(2B) as a section of the law as a ‘directory nature’ with powers accrued to Medical board to suggest and recommend and not as an ‘empowering section’ which gives final authority to the Medical Board to decide on the question of termination. To say that the foetal anomalies are curable, free of cost- the court stated- the medical board did not take into account the extra effort every day and week that the parents would have to put in giving the child such care only to see a chance at life threatening disease possibly be faced when the child is 10 years old.

Hence the court held as follows, with respect to the autonomy of the woman over her body and pregnancy, when the conditions in the law are met. The judgement reads:

“The Petitioner takes an informed decision. It is not an easy one. But that decision is hers, and hers alone to make, once the conditions in the statute are met. The right to choose is the Petitioner’s. It is not the right of the Medical Board. And it is also not the right of the Court to abrogate the Petitioner’s rights once they are found to fall within the contemplation of the law.”

Conclusion

The judgement although gave an expansive meaning with respect to autonomy of the woman in cases of Section 3(2B), it explicitly distances unmarried women from exercising the same autonomy. In fact, the Bombay High Court clearly stated that it is only considering the situation and rights that are available under Section 3 of the MTP Act when it related to the pregnancy of an adult married woman. The reasoning given by the court to arrive at this partial conclusion is that the petitioners did not ask the court to consider the case of unmarried women.
However, there was no clear reasoning as to why this logic of reproductive autonomy within the contours of law will not be applicable to unmarried women.

Despite this judgement being a progressive expansion of judgement of the Supreme Court in X vs. NCT, there is this significant gap yet that remains to be filled.