Doctor Can Medically Terminate Pregnancy Exceeding 20 Weeks Without HC's Permission If Mother's Life Is In Danger: Bombay HC [Read Judgment]

The Bombay High Court on Wednesday passed landmark directions after hearing three petitions filed by women seeking permission to medically terminate their pregnancy. The length of their respective pregnancies had exceeded 20 weeks.

Division bench of Justice AS Oka and Justice MS Sonak held that a registered medical practitioner may medically terminate pregnancy which has exceeded 20 weeks, without permission from the High Court, only when he is of the opinion, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

Court further held that in a case where attempts are made to medically terminate a pregnancy in good faith to save the life of the mother and still the child is born alive, the State will have to assume parental responsibility, if the parents of such child are unwilling to or genuinely not in a position to care for such child.

Although, Court had allowed medical termination of the three respective pregnancies, the petitions were kept pending as important issues were raised in the petition. Court said-

"This is because several such petitions are being filed in this Court seeking urgent reliefs. In matters of this nature, every passing day produces irretrievable changes in the status of the petitioners and foetus which they carry. These changes invariably have a direct impact upon the reliefs applied for in such petitions."

Thus, Court appointed Senior Advocate DJ Khambatta as the Amicus Curiae in the matter.

MTP Act and Right to Life

The Medical termination of Pregnancy Act was enacted on April 1, 1972 to provide for the termination of certain pregnancies by registered medical practitioners. The said act was amended in 2002.

After examining various judgement of the Supreme Court, the bench observed-

"From the conspectus of the decisions of the Supreme Court, it is quite clear that the Supreme Court has construed the provisions in section 5 of the MTP Act, not narrowly by adopting the principle of literal construction but liberally by adopting the principle of purposive construction. The Supreme Court has consistently permitted medical termination of pregnancies which had exceeded the ceiling of 20 weeks where medical opinion established that continuance of pregnancy involved grave injury to the mental health of the pregnant woman or where there was substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. This was despite the fact that there was no immediate danger to the life of the pregnant mother."

If the expression "life" in section 5(1) of the MTP Act is not to be confined to mere physical existence or survival, then, permission will have to be granted under section 5 (1) of the MTP Act for medical termination of pregnancy which may have exceeded 20 weeks, if the continuance of such pregnancy would involve grave injury to the mental health of the pregnant woman, Court said.

Court noted that the moot question with regard to life and right to life is-

"Whether the expression "life" in section 5 of the MTP Act must be construed narrowly by adopting the principle of literal interpretation or liberally by adopting the principle of purposive interpretation?"

Court noted further-

"Reference can be usefully made to several decisions rendered by Supreme Court in which medical termination of pregnancy was permitted beyond the ceiling period of 20 weeks as prescribed in section 3 (2) of the MTP Act where the continuance of pregnancy involved grave injury to the mental health of the pregnant woman or where there was substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. This means that the principle of narrow or literal construction was not adopted when it came to interpretation of the provisions in section 5 of the MTP Act by the Supreme Court in several cases. Rather, the principle of liberal or purposive interpretation was adopted."

Judgement

The bench referred to the judgement of a Constitution bench of the Supreme Court in M Nagraj vs Union of India on right to life and human dignity and State's responsibility to facilitate the rights, liberties and freedoms of individuals and said-

"Therefore, if the child, despite attempts at medical termination of pregnancy, is born alive, then the parents as well as the Doctors owe a duty of care to such child. The best interest of the child must be the central consideration in determining how to treat the child.

Unfortunately, if the parents are unwilling to take care of the child or are not in a position to take care of the child, then, the "parens patriae" doctrine, will oblige the State to assume parental responsibility in relation to such child. Even apart from the said doctrine, the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, will apply to such an unfortunate situation."

Thus, Court held that a registered medical practitioner may medically terminate a pregnancy exceeding 20 weeks without taking permission of the Court only when here is immediate danger to the life of the mother. In any other circumstance, permission of the High Court is mandatory.

"We further hold that where, this Court, in exercise of its powers under Article 226 of the Constitution of India has permitted medical termination of pregnancy and the child is born alive, if the parents of such child are not willing to or are not in a position to assume the responsibility for such child, then, the State and its agencies will have to assume full responsibility for such child and offer such child medical support and facilities, as may be reasonably feasible" Court said.

The bench also directed the State to constitute medical boards in each district in order to examine cases of women seeking medical termination of pregnancy. The State has also been directed to emphasize on providing facilities to women in rural areas with regard to their hygiene and health.

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