Supreme Court Questions MTP Act For Allowing Abortion Of Pregnancy Beyond 24 Weeks In Case Of Foetal Abnormality, But Not Minor Rape Or Incest

In a recent judgment, the Supreme Court expressed reservations about the Medical Termination of Pregnancy Act not allowing termination of pregnancy above the upper limit of 24 weeks in the case of minor victims of rape and incest, while allowing termination of such pregnancies if there are substantial foetal abnormalities.

According to the Court, the legislature seems to have made a value judgment that a substantially abnormal foetus will inflict more aggravated injury on a pregnant person than rape.

Referring to Section 3(2B) of the MTP Act, the Court stated :

"The provision is arguably suspect on the ground that it unreasonably alters the autonomy of a person by classifying a substantially abnormal fetus differently than instances such as incest or rape." It was added that this issue may be examined in an appropriate proceeding if it becomes necessary.

The bench of Chief Justice of India Dr DY Chandrachud and Justices JB Pardiwala, Manoj Misra was dealing with the case of a minor, who sought medical termination of pregnancy pursuant to a sexual assault. When the appellant (minor girl's mother) moved the Bombay High Court, the Medical Board gave an opinion declining termination, stating that there was no congenital abnormality diagnosed and gestational age of the fetus was between 27-28 weeks. This report however did not record the impact of the pregnancy on the physical and mental health of the minor girl.

Initially, by setting aside the Bombay High Court order, the top court permitted the minor girl to undergo medical termination of pregnancy despite being in her 30th week. However, later, when the doctors outlined the inherent risks of terminating the pregnancy at advanced stage, she and her parents expressed changing views. This led the Court to hear the matter again.

Ultimately, taking into account the wishes of the minor girl and her parents to have the child delivered on the due date, as well as the minor girl's well-being, the earlier order permitting termination of pregnancy was recalled.

Factual aspects aside, the court observed that whenever a pregnant person over gestational age of 24 weeks approaches constitutional courts, it is imperative for the medical board, formed in terms of the MTP Act, to opine on their physical and mental health, regardless of whether or not there are substantial foetal abnormalities.

The court further took the occasion to underline that the MTP Act stipulates two situations under which there shall be no cap on the length of pregnancy for which termination is permissible: first, under Section 5, when a medical practitioner is of the opinion (formed in good faith) that the termination is immediately necessary to save the life of the pregnant person, and second, under Section 3(2-B), when the fetus has substantial abnormalities.

It was opined that the provision unreasonably alters the autonomy of a person by classifying a substantially abnormal fetus differently than instances such as incest or rape.

"The legislation has made a value judgment in Section 3(2-B) of the Act, that a substantially abnormal fetus would be more injurious to the mental and physical health of a woman than any other circumstance. To deny the same enabling provision of the law would appear prima facie unreasonable and arbitrary. The value judgment of the legislation does not appear to be based on scientific parameters but rather on a notion that a substantially abnormal fetus will inflict the most aggravated form of injury to the pregnant person".

The conclusions arrived at by the court in its judgment are extracted below:

(i) The MTP Act protects the RMP and the medical boards when they form an opinion in good faith as to the termination of pregnancy;

(ii) The medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) of the MTP Act but must also evaluate the physical and emotional well being of the pregnant person in terms of the judgment;

(iii) When issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances; and

(iv)The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion.

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

Citation : 2024 LiveLaw (SC) 349

Click here to read judgment