Bombay HC allows woman to terminate 25-week pregnancy at private hospital despite legal bar

Mumbai: Upholding a pregnant woman's reproductive rights, autonomy over her body and right to choice, the Bombay High Court has permitted a 25-week pregnant woman to undergo a medical termination of pregnancy (MTP) at a private hospital of her choice since her case falls in the category of 'utmost urgency' after a medical board confirmed a fetal anomaly with high postnatal morbidity.

Considering the facts, the court passed the judgment despite the existing Medical Termination of Pregnancy (MTP) rules specifically indicating that private institutions cannot perform such procedures for pregnancies more than 24 weeks. The green signal from the court follows the recommendation and confirmation of the medical board of Sir J. J. Group of Hospitals and Grant Medical College, Mumbai that the petitioner was physically fit to undergo the MTP procedure.

Given that the pregnancy had already reached 25 weeks, the court prioritized urgency and ensured that no time was wasted in delivering the verdict while also considering the petitioner’s reproductive rights and her right to choose any hospital.

A division bench comprising Justice Revati Mohite Dere and Justice Neela Gokhale while passing the order said, "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."

However, the primary issue in the case was the certain technicalities in the Medical Termination of Pregnancy (MTP) rules that prevent private institutions from performing such procedures for pregnancies beyond 24 weeks. In this case, the petitioner chose to terminate her pregnancy at a private hospital.

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The petitioner, an adult woman, sought permission to terminate her pregnancy after medical tests confirmed that the fetus was diagnosed with 3M syndrome, a condition associated with severe skeletal dysplasia and high postnatal morbidity. The medical board, unanimously recommended the termination, stating that the condition would require multiple corrective surgeries and could lead to long-term complications, including infertility.

However, despite receiving approval from the medical board, the petitioner was unable to undergo the procedure due to a lacuna in the MTP law. The current MTP Rules allow private institutions to perform termination of pregnancies only up to 24 weeks. There is no provision under the Rules that permits private hospitals to seek approval for performing procedures beyond the 24-week limit, leaving the petitioner unable to secure the procedure at her chosen institution—Cloudnine Hospital in Malad.

Advocate Meenaz Kakalia, representing the petitioner, argued that the petitioner has a twofold prayer. Firstly, she seeks permission to medically terminate her pregnancy at an institution of her choice, subject to the said institution possessing the facilities as required under Rule 5(1)(ii) of the MTP Rules, 2003. Secondly, she seeks permission to a registered Medical Practitioner performing the procedure to adopt the guidelines framed by the Union of India with respect to the methods of termination.

Further, she also referred to the guidance note issued by the Union of India regarding Medical Boards for terminating pregnancies beyond 20 weeks. According to Clause V(c), it may be necessary to stop the fetal heartbeat to prevent the fetus from being delivered alive. The State Government has also adopted these guidelines from the Central Government and allows for stopping the fetal heartbeat in such cases.

"As far as the first prayer is concerned, we have perused the opinion of the Medical Board. It is clear that the there is fetal anomaly in the form of a syndrome associated with severe growth restriction long and short bones anomalies cartilage and axial skeletal anomalies which would require multiple corrective surgeries for severe deformities. The child may have a risk of hypogonadism and infertility in future, hence the Board has recommended medical termination of her pregnancy," she highlighted.

During the hearing, advocate Meenaz Kakalia pointed out a significant gap in the legal paperwork required for medical termination of pregnancy. She highlighted that Form A, which is used to approve medical institutions for conducting abortions, only includes two categories: one for pregnancies up to 12 weeks and another for those up to 24 weeks.

However, there is no provision for pregnancies beyond 24 weeks. Due to this missing category, the hospital chosen by the petitioner could not apply for approval under Form A, leaving it without the necessary certification under Rule 5(6) of the Medical Termination of Pregnancy (MTP) Rules.

Given the urgency of the petitioner’s case, as her pregnancy had reached an advanced stage, the court took immediate steps to resolve the issue. It directed the petitioner's advocate to submit an affidavit from the hospital's owner or an authorized representative, confirming that the institution met all the necessary medical and legal requirements under Rule 5(2) of the MTP Rules.

Submitting the affidavit on February 13, she explained that Cloudnine Hospital has the required facilities and approvals to conduct the procedure including compliance with the necessary MTP Rules. In support of the petitioner’s request, Cloudnine Hospital submitted an affidavit confirming that it meets all the required criteria under the MTP Rules and has the necessary facilities for the same.

The affidavit stated that the hospital has the necessary approval under Form 'B' of the MTP Rules from the Municipal Corporation of Greater Mumbai to conduct pregnancy terminations. It also confirmed that the hospital has facilities for performing sonographies, including invasive procedures, and was licensed under the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 as required by the MTP Rules.

After reviewing the affidavit, the court was satisfied that Cloudnine Hospital in Malad (West) met the required standards. The judges, therefore, allowed the petitioner to undergo the abortion procedure at this hospital.

Additionally, in line with the guidance issued by the Union of India and adopted by the Maharashtra government, the court permitted the medical practitioner performing the procedure to take necessary steps, including stopping the fetal heartbeat before termination if deemed medically necessary.

Further, the Court left the larger issue related to lacunae in form A under Rule 5 (2) of the MTP open for future consideration and scheduled further hearings on March 10.

To view the official court order, click on the link below:

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