Despite 24-week limit, why Bombay HC allowed termination of a 25-week pregnancy at a private hospital

Despite receiving a recommendation from the panel, the petitioner could not undergo the procedure due to a lacuna in the MTP law and sought relief from the HC. Here is why.

What is the law on abortion in India?

As per section 3 of the MTP Act, the termination of pregnancy up to 20 weeks of conception can be undertaken on the advice of one registered medical practitioner. In the case of pregnancy between 20 and 24 weeks, abortion is permitted only after two registered medical practitioners opine for it.

Moreover, Rule 3B of the MTP Rules of 2003, formed under the MTP Act, permits abortion between 20 to 24 weeks of pregnancy for some categories – including victims of sexual assault or rape, minors, change in the marital status of a woman during pregnancy, women with physical disabilities or mental illness.

After 24 weeks, the MTP Act requires medical boards of expert doctors to be set up by the state government in each district, which opine on whether to allow termination of pregnancy in case of substantial foetal abnormality.

Medical practitioners also have to examine if the continuation of pregnancy would involve risk to the life of the pregnant woman or would cause “grave injury to her physical or mental health”. They have to ascertain if there is a “substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.”

What are the regulations for abortion at private hospitals?

Section 4 of the MTP Act says a pregnancy can be terminated at a hospital established or maintained by the government, or a place for the time being approved under the MTP Act by Government or District Level Committee headed by a Chief Medical Officer or District Health Officer.

The committee, under Rule 5 (6) of the MTP Rules, can consider the application by the private hospital and issue a certificate of approval for abortion. ‘Form A’ has to be submitted for approval for termination of pregnancy and it includes two categories – termination of pregnancy up to 12 weeks, and pregnancy up to 24 weeks.

What was the issue raised before HC?

Advocate Meenaz Kakalia, appearing for the petitioner, submitted that there was an ambiguity in the Rules as there was no third category provided in Form A for termination of pregnancy beyond 24 weeks. As a result, the hospital of the petitioner’s choice did not have a certificate to terminate the petitioner’s pregnancy and was unable to conduct the procedure.

She argued that pregnancy beyond 24 weeks can also be terminated if the necessary facilities are available at a private hospital. Therefore, a third such category was required to be added to Form A.

What did the High Court observe?

A bench of Justices Revati Mohite-Dere and Neela K Gokhale said there was “utmost urgency” in the petitioner’s case to terminate pregnancy at its advanced stage. It also noted that according to the affidavit submitted by the Dean of the concerned private hospital of the petitioner’s choice, it fulfilled conditions under MTP Rules and had the license for conducting sonographies and other facilities.

“Conscious of the right of the Petitioner to reproductive freedom, her autonomy over the body and her right to choice, the medical condition of the Petitioner and having considered the findings and opinion of the Medical Board, we permit the Petitioner to medically terminate the pregnancy,” it held.

In a similar case in April 2024, a bench of Justices Atul S Chandurkar and Jitendra S Jain allowed a 37-year-old woman from Thane to terminate her 27-week pregnancy at a private hospital in the city of her choice. The HC had cited the “exigency of the case” due to foetal abnormalities.

However, it kept the larger issue regarding ambiguity related to the termination of pregnancy at private hospitals open for consideration. On Thursday too, the bench said it will deliberate upon the issue of lacunae in Form A under Rule 5 (2) of the MTP Rules during the next hearings.