Bombay HC allows woman to abort 26 weeks pregnancy only if Doctors confirm baby won't be born alive

Mumbai: In an order to a woman praying for medical terminating her 26 weeks pregnancy, the Bombay High Court recently granted permission for abortion on the condition that the doctors would confirm that the baby may not be born alive.

The bench comprising of Justices Sanjay Gangapurwala and RM Laddha clarified that they have not problem in allowing the Medical Termination of Pregnancy (MTP) if the baby is not born alive after the procedure.

"In case the doctors are of the opinion that the baby may not be born alive at the time of terminating pregnancy, the petitioner is permitted to terminate the pregnancy," the HC bench observed on Friday. 

The plea had been moved by a 21-years-old unmarried woman as she was not eligible for relief under the Medical Termination of Pregnancy (Amendment), 2021. Medical Dialogues had earlier reported that as per the amended law those women who will be termed to be eligible to terminate their pregnancies up to twenty-four weeks include survivors of sexual assault or rape or incest, minors, women with changed marital status, women with physical disabilities, mentally ill women, pregnancy involving foetal malformation, women with pregnancy in humanitarian settings or disaster or emergency situations.

Also Read: Pregnancies up to 24 weeks of unmarried women arising out of consensual relationships not covered under MTP Act: Delhi HC

In this case, the concerned petitioner had become pregnancy as a result of a consensual act and due to failure of a contraceptive device. Since the petitioner woman's case did not fall under the categories covered under MTP (Amendment), 2021, from 20 to 24 weeks, she had approached the HC seeking relief.

As per the latest media report by the Times of India, the medical board of the JJ Hospital stated in its report dated September 8, 2022 that there was no abnormality in the fetus or the mother. Further the report stated that the pregnancy was at 27 weeks and terminating it at "this stage will result in a pre-term viable baby requiring intensive care management."

Following this, on September 13, the bench directed the board for re-examining the petitioner on the length of her pregnancy. Such a direction was given by the bench as it had noticed a discrepancy between the sonography report and the Board's opinion.

Accordingly, the report dated September 15, 2022 mentioned that the woman was 25.4 weeks pregnant. However, the medical board reiterated the opinion expressed earlier.

At this outset, the counsel for the petitioner, Advocate Aditin Saxena referred to an explanation given in the MTP Act, which permits termination where the cause of the pregnancy was failure of contraceptive device or method. It was argued by the petitioner's counsel that the board was expected only to opine about the extent of anguish caused to the petitioner by such pregnancy and no more.

Responding to this, the HC bench clarified that they would permit MTP without any hesitation on account of failure of a contraceptive device even though the petitioner is an unwed mother and the pregnancy resulted from consensual act.

However, the bench clarified that their only concern was the opinion of the Medical Board, which had expressed the possibility of a pre-term viable baby.

"The baby born will have to be taken care of and it should not happen that the baby is born with some deformity due to premature termination of pregnancy," the bench noted at this outset.

Following this, the bench clarified that if the baby is not born alive, then there is no problem in permitting MTP. Therefore, passing the order, the bench clarified, "We understand the trauma that the petitioner, an unwed mother, would undergo. At the same time, it cannot be lost sight of an alive baby being born and the consequences it would have on the baby if it is prematurely terminated."

In should be mentioned in this context that recently the Delhi High Court had turned down the plea of abortion by a 25-year-old woman as the court opined that pregnancies up to 24 weeks of unmarried women, arising out of consensual relationships are not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003.

Also Read: Patient Dies after MTP at 26 Weeks: NCDRC slaps Rs 1 crore compensation on Moolchand Hospital, Gynaecologist