Formulate SOP for medical termination of pregnancy beyond 24 weeks: Bombay HC tells Maha Govt

Mumbai: While hearing a plea of a woman seeking termination of her 32-week pregnancy due to abnormalities in the foetus, the Nagpur bench of the Bombay High Court directed the Maharashtra government to formulate a Standard Operating Procedure (SOP) at all state-run government hospitals and medical colleges within two months for handling cases related to the termination of pregnancy beyond 24 weeks. 

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Nitin Sambre in its order of April 5 noted that the amended Medical Termination of Pregnancy (MTP) Act permits termination of pregnancy beyond 24 weeks in cases of severe abnormalities in the foetus. 

Under the amended provisions of the Act, the state government is required to constitute medical boards in each district which has the power and discretion to allow or deny termination of pregnancy beyond 24 weeks of gestation period.

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“There is no such requirement of seeking any permission from the Court by any woman who intends to get her pregnancy terminated even if the pregnancy is beyond twenty-four weeks. All what was required to be done, in such a situation, was that the woman ought to have been referred to the Medical Board”, the bench observed.

The bench was hearing a petition filed by a woman seeking termination of her 32-week pregnancy due to abnormalities in the foetus. As per the plea, the general hospital in Wardha informed the woman about the fetal abnormalities during her 24th-week scan, reported by PTI.

Given that the pregnancy had exceeded twenty-four weeks, the court on April 3, 2024, directed the Civil Surgeon to conduct a medical examination and submit a report. The Medical Board at the General Hospital, Wardha, comprising nine doctors and one matron, conducted the examination and forwarded its report, confirming the abnormalities in the fetus.

As per the report of the Medical Board, the continuation of the petitioner's pregnancy would involve grave injury not only to her physical but mental health as well and significant morbidity to her child, if born. The Medical Board, thus has recommended that the pregnancy should be terminated.

The Medical Termination of Pregnancy Act, 1971 (for short, the MTP Act, 1971) as amended vide Act 8 of 2021 with effect from 24.09.2021, makes provisions for the termination of pregnancy by a registered medical practitioner. Section 3(2) provides that a pregnancy may be terminated by a registered medical practitioner where the length of pregnancy does not exceed 20 weeks and where the length of pregnancy is between 20 and 24 weeks; by two registered practitioners. The pregnancy can be terminated if, in the opinion of the registered medical practitioners, the continuance of the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health; or there is a substantial risk to the child if born.

However, sub-section (2-B) of Section 3 carves out an exception to the provisions of sub-section (2), according to which, sub-section (2) of Section 3 will have no application to termination of pregnancy where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by the Medical Board. 

The court also noted that despite the provision of the Medical Termination of Pregnancy Act, 1971, and the Medical Termination of Pregnancy Rules, 2003, which mandate referral to a Medical Board in such cases, the petitioner was incorrectly directed to seek court permission for termination.

Consequently, the court directed the Department of Public Health and the Department of Medical Education and Drugs of the State of Maharashtra to formulate an SOP, to be prepared by experts in the field at all government hospitals and medical colleges in the state to prevent the need for court intervention in such matters.  

"We expect that this Standard Operating Procedure, to be prepared by experts in the field, shall be formulated and notified by the State Government within a period of two months," the court said, posting the matter for further hearing on June 12.  

Further, considering the financial condition of the petitioner, the court directed the management of the General Hospital, Wardha to carry the entire expenses of the hospitalization, procedure, medicines, etc of the petitioner.   

"The learned Government Pleader is requested to not only apprise the authorities concerned about this order but also to use his good offices to ensure that workable Standard Operating Procedure is put in place and implemented so that no one needs to travel to this Court for seeking any permission for termination of pregnancy, if the woman is entitled to do so under the provisions of the MTP Act, 1971 and MTP Rules, 2003," observed the bench.  

Further, the bench adds, "For further continuation of the proceeding of this petition, the office is directed to register this petition as a separate Public Interest Litigation. We further direct the office to implead Additional Chief Secretary/Principal Secretary, Department of Public Health as well as the Medical Education and Drugs Department, State of Maharashtra as party respondents to the said Public Interest Litigation."

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