Bombay HC allows woman to abort 27-week foetus with abnormalities
India’s Medical Termination of the Pregnancy (MTP) Act, 1971, permits pregnancies to be terminated up to 20 weeks, but courts make exceptions keeping in mind woman’s physical health.mumbai Updated: Jan 10, 2018 07:40 IST
In a liberal and progressive interpretation of the Medical termination of Pregnancy (MTP) Act, the Bombay High Court on Tuesday allowed a woman to terminate her 27-week pregnancy, taking into consideration the physical and mental trauma she would suffer if the child was born with severe abnormalities.
The foetus she is carrying has severe abnormalities.
India’s Medical Termination of the Pregnancy (MTP) Act, 1971, permits pregnancies to be terminated up to 20 weeks, but courts make exceptions beyond 20 weeks after a board of doctors confirms continuing the pregnancy is a risk to the woman’s physical health. In this case, the board that examined the woman said there was no risk to her life.
That put the high court bench in a bind. It could have allowed a termination under two conditions: under Section 5 of the law to save the woman’s life (irrespective of the pregnancy duration) or under Section 3(2), if the pregnancy is not more than 20 weeks old, if it poses grave injury to the woman’s physical or mental health, if there are chances of the baby being handicapped, or if the pregnancy is a result of rape or contraceptive failure.
To be sure, there have been instances of courts permitting termination of pregnancies that are older, but these have been exceptions.
The Bombay High Court ruling, by a division bench of Justice RM Borde and Justice Rajesh Ketkar, was not made on exceptional grounds but on a very liberal interpretation of the law. The bench said Sections 3 and 5 were required to be construed harmoniously with the object of the enactment.
“If conditions laid down in sub-Section 2(b) of Section 3 of the (MTP) Act are fulfilled, it would provide good ground for exercise of Section 5 of the Act,” said the bench.
Specifically, the bench took note that Section 5 of the law uses words specifically excluding the limitation set out by Section 3 and that, therefore, the emergency clause in Section 5 could be invoked irrespective of the length of the pregnancy.
Besides, it said, the construction would also be in tune with the proposed amendment to the MTP Act, which seeks to extend by four weeks the limit of 20 weeks set out in Section 3.
The MTP (Amendment) Bill 2014 proposes to relax the upper limit of legal abortion from 20 to 24 weeks and make access easier by widening the provider base by training auxiliary nurse midwives (ANMs), nurses, and AYUSH practitioners to terminate early-stage non-surgical pregnancies; introduce a confidentiality cause; and remove the need for a doctor’s second opinion for second-trimester pregnancies.