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 woman's 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
b. (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 –
A. 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
B. 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
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