Medical Board Must Report Physical & Mental Health Of Pregnant Person Even If Pregnancy Is Above 24-Weeks & There Are No Foetal Abnormalities: Supreme Court

In an important judgment, the Supreme Court observed that when a medical board formed in terms of the Medical Termination of Pregnancy (MTP) Act 1971 examines a pregnant person with a gestational age above twenty-four weeks, it must opine about the physical and mental health of the person, even if there are no substantial foetal abnormalities.

The bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra underscored the importance of the medical board's report in helping the Court to evaluate a plea for abortion being made by a person whose pregnancy has crossed the upper limit of 24 weeks. However, as per Section 3(2B) of the MTP Act, pregnancy above 24 weeks can be terminated if the medical board opined that such termination was necessary by the diagnosis of any of the substantial foetal abnormalities.

In the instant case, while dealing with the pregnancy of 28 weeks of a minor rape survivor, the medical board opined against termination by stating that substantial foetal abnormalities were not diagnosed. The reprot did not record any opinion of the board regarding the physical and mental health of the minor girl.

Criticising this approach, the Court observed :

"The report failed to form an opinion on the impact of the pregnancy on the physical and mental health of the pregnant person. If a pregnant person meets the condition under Section 3(2-B) of the MTP Act then there would be no need for any permission by the courts. Therefore, whenever a pregnant person approaches the High Court or this Court, it is imperative for the medical board to opine on the physical and mental health of the pregnant person."

In this regard, the judgment recalled that in XYZ v. State of Gujarat (2023 LiveLaw (SC) 680), it was held that "the medical board or the High Court cannot refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription."

Medical board cannot simply refuse abortion by saying condition under Section 3(2B) has not been met

The judgment stated that when a person approaches the court for permission to terminate a pregnancy, the courts apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In doing so the court relies on the opinion of the medical board constituted under the MTP Act for their medical expertise. The court would thereafter apply their judicial mind to the opinion of the medical board.

"Therefore, the medical board cannot merely state that the grounds under Section 3(2-B) of the MTP Act are not met. The exercise of the jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a medical board must examine the pregnant person and opine on the aspect of the risk to their physical and mental health," CJI Chandrachud wrote in the judgment.

The opinion of the pregnant person must be given primacy in evaluating the foreseeable environment of the person

As per Section 3(3) of the MTP Act, in determining whether the continuance of a pregnancy would involve such risk of injury to the health,  account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

In this regard, the Court observed :

"The opinion of the pregnant person must be given primacy in evaluating the foreseeable environment of the person under Section 3(3) of the MTP Act."

The judgment stressed on the need for giving primacy to the fundamental rights to reproductive autonomy, dignity and privacy of the pregnant person by the medical board and the courts.

"The delays caused by a change in the opinion of the medical board or the procedures of the court must not frustrate the fundamental rights of pregnant people. We therefore hold that the medical board evaluating a pregnant person with a gestational age above twenty-four weeks must opine on the physical and mental health of the person by furnishing full details to the court," the judgment stated.

The right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution

The Court reiterated that the "right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution."

In this case, the minor and her mother, decided to carry the pregnancy to the full term, rethinking their iniitial decision. In that view of the matter, the Court recalled its initial order allowing the termination of pregnancy.

"The choice to continue pregnancy to term, regardless of the court having allowed termination of the pregnancy, belongs to the individual alone," the judgment stated.

Case Title : A (Mother of X) v. State of Maharashtra

Citation : 2024 LiveLaw (SC) 349

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