Liberally interpreting MTP Act, Bombay HC allows abortion

Mumbai: The Bombay High Court on Tuesday allowed a city woman to terminate her 28-week pregnancy, taking into consideration among other things the mental trauma she was likely to suffer as her foetus was found to have severe abnormalities.

The Medical Termination of Pregnancy (MTP) Act doesn’t allow termination of pregnancy after 20 weeks if the foetus has abnormalities, but the court made an exception in view of possible risks to the health of the child, and the trauma the mother would suffer.

A bench of justices R M Borde and Rajesh Ketkar ruled that though the MTP Act doesn’t provide for consideration of the woman’s mental health and foetal abnormalities after the 20-week period, courts must make an expansive reading of its provisions.

The bench took note of the argument by petitioner’s lawyer Meenaz Kakalia that if the abortion was not allowed, not only the child will be born with abnormalities, but forcing the woman to continue with the pregnancy will cause her much trauma and affect her mental health, and thereby her constitutional right to life.

The MTP Act permits abortions after consultation with a single doctor up to 12 weeks. Between 12 to 20 weeks opinion of two doctors is required when the foetus is found to have abnormalities or the pregnant woman faces risks to her physical or mental well-being.

Beyond 20 weeks, the law makes exceptions only if the continuation of pregnancy poses a threat to the mother’s life. In the present case, while a board of doctors from the government-run JJ Hospital confirmed in a report on January 3 that the foetus had severe brain and cardiac deformities and its stomach was not seen yet, it also stated that the pregnancy and delivery will not pose any risk to the physical health or life of the petitioner woman.

The bench, however, decided to go beyond the definition of health and life of the woman and the risks under the MTP Act. It cited several judgements of the Supreme Court and the Bombay High Court which had taken into consideration the mental anguish the woman may suffer if forced to undergo pregnancy and which had endorsed her right to choice and personal liberty.

Forcing the petitioner to give birth knowing that the child will be born with life-threatening problems would cause her mental trauma that would, in turn, affect her physical well-being, the division bench said in its ruling on Tuesday.

It wouldn’t be “proper to ask that the woman continue with the pregnancy considering that the child, once born, will have to battle life-hampering disabilities”, the judges said, allowing the woman to medically terminate the pregnancy.

“We feel that this stand of the court is logical and also in consonance with the proposed amendments to the MTP Act,” the bench said. In 2014, the Union Ministry of Health and Family Welfare proposed amendments to the Act, introducing the concept of risk to the mental health of the woman and also the idea of substantial foetal abnormalities.

In the latter case, pregnancy can be terminated at any point, as per the draft amendment, which is yet to become a law.