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Why Bombay HC allowed abortion after 33 weeks — ‘law does not have all the answers’

Court allowed married woman to undergo abortion against medical board's advice because of 'severe abnormalities', and said refusal on ground of delay denies right to reproductive autonomy.

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New Delhi: Does a married woman in India have the right to decide whether she wants to keep or abort her unborn child after 20-24 weeks of pregnancy, following the detection of serious abnormalities? Should the social and economic conditions of the mother be taken into consideration while allowing or disallowing medical termination of pregnancy?

The Medical Termination of Pregnancy (MTP) Act, 1971 allows for termination of pregnancy up to 20 weeks by a registered medical practitioner and by two medical practitioners beyond 24 weeks of pregnancy.

Months after the Supreme Court delivered a significant verdict, expanding the scope of the MTP Act, 1971 and upholding the right of single and unmarried women to abort a 24-week-old foetus, the Bombay High Court this month allowed a married woman to undergo abortion of her 33-week foetus on account of “severe abnormalities”.

In September last year, the Supreme Court in a landmark judgment ‘X v The Principal Secretary, Health and Family Welfare Department, Govt of NCT’ upheld a woman’s right to reproductive and bodily autonomy.

Relying on the SC judgment, the Bombay High Court, in a verdict — delivered Friday and made public Monday — allowed a married woman to terminate her 33-weeks pregnancy against the advice of the medical board. The HC, however, clearly stated that it “is only considering pregnancy of an adult married woman”.

A division bench of Justices G.S. Patel and S.G. Dige of the Bombay HC delivering the ruling in the ‘ABC vs State of Maharashtra’ case said “that decision [to abort] is hers, and hers alone to make, once the conditions in the statute are met”.

Citing “serious foetal anomalies and abnormalities” like microcephaly (smaller head) and lissencephaly (brain malformation) detected during a routine medical check-up in the 29th week, the woman had filed a writ petition in the HC in mid-January when she was roughly in her 32nd week of pregnancy.

In December 2022, the medical board of Sassoon General Hospital, Pune, where the woman went for the checkup, indicated the possibility of intellectual disability in the foetus, but said both conditions are “not life-threatening”.

Following this, the board had denied her request to terminate pregnancy in view of the advanced gestation period. This, the high court said, was “plainly wrong”, adding since there was “a severe foetal abnormality, the length of the pregnancy did not matter”.

The HC made an elaborate interpretation of Section 3 of the MTP Act, 1971, which deals with termination of pregnancies by registered medical practitioners.

What does Section 3 of the MTP Act, 1971 say? ThePrint explains.

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Provisions of Section 3 

Section 3 (2) (a) of the MTP Act allows medical termination of pregnancy between 20 weeks by a registered medical practitioner. Section 3 (2) (b) has provision for termination after 24 weeks, where two registered medical practitioners are of the opinion, “formed in good faith”, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health. It also takes into account the situation where there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

However, Section 3(2B) says that 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.

The woman in her petition cited this provision and through her advocate Aditi Saxena, pointed out that “the medical termination of a late pregnancy beyond 24 weeks was not absolutely prohibited”, while adding that the law does not say what is to happen if late in the pregnancy a foetal abnormality was indeed detected. She also argued that once a medical report “confirms “substantial foetal abnormalities, the time-limits of up to 20 weeks but less than 24 weeks, and beyond 24 weeks simply do not apply”.

She said that Section 3(2B) has “nothing to do with practitioners” and only speaks of the opinion of the medical board.

She added that “the Act is being persistently misread” and that “the trend and practice to seek the ‘opinion’ of the Board or its recommendations for a termination even when substantial abnormalities are detected is widely misunderstood”.

The board only needs to assess and report whether there is a substantial foetal abnormality, and whether the medical termination is safe on an assessment of the mother’s mental and physical health, said the petitioner, to which the court agreed.

Citing the SC verdict, the HC said that the “apex court elucidated the Constitutional values that animated the proper interpretation of the Medical Termination of Pregnancy Act (1971)”. It emphasised on the right to reproductive, bodily and decisional autonomy of women.

Agreeing with the petitioner’s submissions, the HC noted that refusing to allow the woman the right to abort her foetus “would be a denial of her right to dignity, and her reproductive and decisional autonomy”.

The court said that the “board, cannot in law, render any other opinion as to whether the termination should be performed, and certainly not because the baby — bound to be born with abnormalities and severe conditions — can be treated or provide medical intervention, even if it is free.”

The court also noted that the medical board “does not take into account the social and economic position of the petitioner and her husband”.

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Dignity, privacy, choice, & socio-economic milieu

The HC also addressed the right to dignity, privacy, freedom of choice, reproductive and bodily autonomy, as well as the social and economic condition of a woman in cases related to medical termination of pregnancy.

The woman in her plea said, “If my petition be dismissed, I am fated to deliver a child who has no prospect of a normal childhood or anything remotely resembling a normal life… I found out about this very late in my pregnancy. No one is to blame. But at least cede to me the choice to determine what I — and I alone — may decide should be done with and to my body. Do not deny to me my right to dignity, my various autonomies and freedoms…”.

To this the court observed that the MTP Act does not answer everything, although it was ahead of its time.

It said, ”In the cold sterility of a legislation, we must discern where justice lies when it is to be applied to the human condition. This is not a case where a blanket invocation of this or that provision will provide an answer”, adding, “justice may have to be blindfolded; it can never be allowed to be blindsided.”

It also emphasised on the need to acknowledge the socio-economic status of the woman, saying, “In cases such as these, we believe Courts must calibrate themselves to not only the facts as they stand but must also consider that what these cases present are, above all, profound questions of identity, agency, self-determination and the right to make an informed choice. We will not ignore the Petitioner’s social and economic condition. We cannot”.

The court cited the 2009 Suchita Srivastava case to say that the right of women to make reproductive choices is a dimension of personal liberty under Article 21 (Protection of life and personal liberty), adding that it recognised that the right to reproductive choice also includes the right not to procreate.

The court referred to the 2018 Puttaswamy case to say that decisional autonomy, which is the ability to make decisions in respect of intimate relations, is an integral part of the right to privacy which in turn protects decisional autonomy in matters related to bodily integrity.

“The right to decisional autonomy also means that women may choose the course of their lives. Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental well-being,” the HC said.

The HC, in unequivocal terms, said that “depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity”.

(Edited by Anumeha Saxena)

Also Read: ‘Marriage can’t take away identity’: SC order scrapping ‘discriminatory’ tax law for Sikkim women


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