The Delhi High Court disallowed MTP for a woman, a recent widow, after the medical board said that foeticide was neither justified nor ethical when the foetus showed no abnormality
By Dr Swati Jindal Garg
In a change of stance after recommendations from a medical board, the Delhi High Court on January 23 recalled its January 4 order which had permitted a woman to terminate her pregnancy. The woman had lost her husband on October 19, 2023, and found out about her pregnancy on October 31. In December, she decided not to continue with her pregnancy as she was suffering from extreme trauma due to her husband’s death and approached doctors to abort the foetus. However, as the gestation period was more than 24 weeks, the permissible limit to abort a foetus, she was not granted permission. She then approached the Delhi High Court for permission to terminate her pregnancy, which it gave.
Subsequently, the centre filed a plea before the Delhi High Court stating that it was imperative that it consider protecting the life of the “unborn child”. It referred to the Supreme Court judgment of October 16, 2023, in X vs Union of India and Anr., dealing with the termination of a 26-week pregnancy. The apex court had recalled its earlier order allowing termination of pregnancy beyond the stipulated period, and after the medical board’s opinion, had disallowed the termination.
And on January 23, a single-judge bench of Justice Subramonium Prasad took cognizance of the AIIMS medical board’s opinion that “since the foetus does not show any abnormality, foeticide in this case is neither justified nor ethical”.
The Court said: “A perusal of the guidelines shows that the medical board which examines the patient has the responsibility to determine if the foetal abnormality is substantial enough to qualify as either incompatible with life or associated with significant morbidity or mortality in the child if born, and unless such abnormalities are shown, foeticide cannot be permitted. In the present case, no such circumstances exist, and therefore, the said guidelines cannot be pressed for permitting foeticide.”
The medical reports had also indicated that a “preterm induction of labour has a high chance of failure and may lead to caesarean section which may have serious implications on her future pregnancies”.
Earlier too, the board had said: “As care providers, we are committed to providing best possible care to the mother and foetus, the mother’s interest being paramount. Taking cognizance of the fact that the patient has severe depression with a tendency to self-harm, it is strongly recommended that she be admitted and treated on priority. It is highly likely that the depression may persist, if not worsen after delivery. The effects of pre-term delivery on the mother should also be considered. This being her first pregnancy, a pre-term induction of labour has a high chance of failure and may lead to cesarean section. This may have serious implications on her future pregnancies.”
The High Court also noted that as per the Medical Termination of Pregnancy (MTP) Act, the “provision of termination of pregnancies beyond 24 weeks is to be done for foetuses having significant abnormalities” and that “foeticide in this case is neither justified nor ethical as the foetus is grossly normal”.
Meanwhile, AIIMS where the woman was medically examined, also approached the Court, saying the outcome would be much better if the child was delivered at 34 weeks of pregnancy or beyond and it was advisable that the pregnancy be continued for another two-three weeks for the betterment of the health of the mother and the child.
Relying on the medical opinion given by the doctors, the Union ministry of health and family welfare, represented in the Court by Additional Solicitor General Aishwarya Bhati, submitted that the present matter made it abundantly clear that the “termination of pregnancy cannot happen unless the doctors conduct a foeticide, failing which there will be pre-term delivery with huge complications”.
The woman was constrained to approach the High Court as the gestation period of her pregnancy was over 24 weeks and hence, she was not allowed to medically terminate it. The High Court too had at that time asked AIIMS to conduct the procedure, making it clear that the order should not be treated as a precedent.
This is not the first time that the centre has intervened to prevent an abortion. In October last year, the Supreme Court had declined a married woman’s plea to medically terminate her 26-week pregnancy, saying it was averse to ordering doctors to “stop the heartbeat” of the foetus when medical reports showed that she would give birth to a “viable baby”. A bench headed by Chief Justice DY Chandrachud made it clear that the woman cannot claim an “absolute, overriding right” to abort, especially when multiple reports from AIIMS confirmed that the pregnancy was neither a cause of immediate danger to her life or that of the foetus.
Section 5 of the MTP Act prescribes medical termination if it is “immediately necessary to save the life of the pregnant woman”. In this case, the chief justice clarified that the term “life” used in this provision cannot be equated to the broader meaning which upholds an individual’s fundamental right to a dignified, meaningful life. Rather, it uses “life” in the context of a life-and-death situation when medical opinion confirms that a woman’s very existence hangs in the balance if she carries her pregnancy to full term.
The case was also very peculiar as it involved two schools of thoughts being represented by two lady judges. Justices Hima Kohli and BV Nagarathna could not come to an agreed decision whether the foetal heart should be stopped in supreme acknowledgment of the woman’s reproductive right and her peculiar position. The Union’s stance therein was that reproductive rights are subject to a legal regime and that a mother’s right cannot be allowed an absolute march over an unborn child’s right to life when the State was obligated and willing to provide all possible medical, psychological and social assistance, including adoption. As per the State, the manifestation of these rights is subject to the right to life of the “unborn child”.
The MTP Act governs the law on abortion and termination of pregnancy in India and permits licensed medical professionals to perform abortions in specific predetermined situations as per the legislation.
Before the enactment of the MTP Act in 1971, medical termination of pregnancy was governed under the Indian Penal Code (IPC), as per Sections 312 to 318. All these provisions were aimed at criminalising abortions, with the only exception being cases where the procedure was done in good faith so as to save the woman’s life. The IPC provisions, however, failed to make a distinction between wanted and unwanted pregnancies, making it extremely onerous for women to access safe abortions and forcing them to engage the services of quacks in order to escape the burden of an unwanted child.
In 1971, the MTP Act was enacted by Parliament not only as a “health” measure, but also on “humanitarian” grounds. This led to the decriminalisation of abortion in certain defined circumstances and under supervision of registered medical practitioners. Under this Act, initially a pregnancy could only be terminated under Section 3(2) if it did not exceed 20 weeks. It also said that the pregnancy could be terminated on the opinion of one doctor if it was done within 12 weeks of conception and two doctors if it was done between 12 and 20 weeks.
Abortion was permitted only when the continuance of the pregnancy would involve a risk to the life of the mother, foetal abnormalities, immediate necessity to save the woman’s life and if it causes grave injury to the woman’s mental or physical health (including rape and failure of birth control measures). The Act also added that a married woman could terminate an unwanted pregnancy, but no such procedure shall be carried out without her consent. Thus, if the mother had not crossed 20 weeks of gestation, she would have been eligible for an abortion under the MTP Act.
The 1971 law, however, did not meet the needs of the changing times. Several women, including rape survivors, unmarried women, mentally incapacitated women and those undergoing unwanted pregnancies due to contraceptive failures, started approaching courts to terminate their pregnancy beyond 20 weeks. This led to its amendment in 2021.
The amendments permitted abortion up to 20 weeks following an opinion of one registered medical practitioner and up to 24 weeks in certain cases defined under the MTP rules. These included women wanting to end the pregnancies due to a change of marital status (widowhood and divorce), survivors of rape, victims of incest and other vulnerable women (like differently-abled women and minors).
These amendments also led to a spate of cases being filed in constitutional courts. The Supreme Court in Suchita Srivastava and Anr vs Chandigarh administration (2009) asserted that a woman’s right to make reproductive choices is also a dimension of “personal liberty”. It said: “It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.” In Z vs State of Bihar (2018), the top court rebuked the “negligence and carelessness” of the authorities in failing to terminate the pregnancy as permitted by law.
In Shaikh Ayesha Khatoon vs Union of India (2017) and Vaishali Pramod Sonawane & Another vs Union of India (2019), the top court expanded the scope of the MTP Act, and ruled that a pregnancy can also be terminated after 20 weeks in situations when there is a substantial risk such as the child suffering from such physical and mental abnormalities as to be severely handicapped.
While history is witness to the fact that courts have always kept in mind the rights to ascertain dignity, privacy and bodily autonomy for women, the centre has also been watchful of the right to life of the unborn child.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi