The Petitioner has approached this Court seeking directions for permitting medical termination of her ongoing pregnancy of 28 weeks under the provisions of the Medical Termination of Pregnancy Act and the Rules framed thereunder.
- The facts reveal that the Petitioner is an unmarried female student aged 20 years and is a permanent resident of Delhi. It is stated that on 25.01.2024, the Petitioner had visited Dr. Batra’s Diagnostic Centre for an ultrasound scan. It is stated that during the course of it, it came to the knowledge of the Petitioner that she is 27 weeks pregnant and it was informed to her that the due date for delivery is 25.04.2024.
- It is stated that prior to the conduct of ultrasound scan, the Petitioner had not found any symptoms of pregnancy due to irregular menstrual periods from August 2023 to January 2024, and that she had not shown any bodily symptoms usually indicating pregnancy.
- It is contended by learned Counsel for the Petitioner that carrying the pregnancy will cause grave injury to the Petitioner’s physical and mental health. It is also pointed out that the Petitioner is a student and is unmarried,
without any source of income and that there will be social stigma and
harassment associated with her continuing the pregnancy which would
jeopardize her career and thereby her future.
- The Petitioner has approached this Court with the following prayers:-
“A. Allow the present writ petition and to pass appropriate writ, order and direction in the nature of writ of mandamus thereby directing Respondents to permit medical termination of ongoing unwanted pregnancy of the Petitioner under section 3(2)(b)(i) r/w 3 (3) & section 5 of the MTP Act r/w Rule 3B MTP Rules 2003 in AIIMS Hospital New Delhi immediately
without disclosing her identity;
B. Direct Respondent No. 3 to terminate the ongoing pregnancy even through feticide as per the guidelines
for late term abortions beyond 20 weeks framed by the Ministry of Health & Family Welfare, Government of India dated 14.08.2017;
C. Direct Respondent No.3 to constitute a medical board immediately & examine the Petitioner physically, mentally, psychologically and also state the survival chances of fetus after medical termination of pregnancy & file a complete medical report with an advance copy supplied to the Petitioner immediately.”
- The Medical Termination of Pregnancy Act and the Rules framed
thereunder governs termination of pregnancy. Section 3 of the MTP Act spells out the situations wherein pregnancies may be terminated by registered medical practitioners. Section 3 of the MTP Act provides that when the length of pregnancy is within 20 weeks it may be terminated by a registered medical practitioner if an opinion is reached in good faith that continuance of the same would involve a risk to the life of the pregnant women or cause grave injury to her physical or mental health or there is a risk to the child or that it will suffer from abnormalities. Section 3 of the MTP Act reads as under:-
“3. When pregnancies may be terminated by registered medical practitioners.
—(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,—
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is,
or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be
prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that—
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health;
or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.—For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
- In case of a pregnancy which exceeds 20 weeks but is within 24
weeks, the same may be terminated if an opinion on the same parameter is
produced by two registered medical practitioners. The cases of such
category of women is prescribed under Rule 3(2)(b) of the MTP Act.
- It is also to be noted that under Section 3(2)(b) of the MTP Act, a
pregnancy may be terminated without record to the length of pregnancy as
given in Section 3(1) of the MTP Act even beyond 24 weeks where such
termination of such pregnancy is necessary due to any substantial foetal
abnormality as diagnosed by a medical board. Section 3(2)(b)(i) of the MTP
Act reads as under:-
“3.(2)(b)(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health;”
- Furthermore, as per Section 5 of the MTP Act, termination of
pregnancy of a duration exceeding 24 weeks can also be allowed only if an
opinion is formed in good faith for the purpose of saving the life of the
pregnant woman. The scheme of the Act has been explained by the Apex
Court in X vs. Union of India and Another, 2023 SCC OnLine 1338, which
reads as under:-
“21. The position of law can therefore be summarized as follows:
Length of the pregnancy Requirements for termination Up to twenty weeks Opinion of one RMP in terms of Section 3(2) Between twenty and twenty four weeks Opinion of two RMPs in terms of Section 3(2) read with Rule
3B. Beyond twenty-four weeks If the termination is required to save the life of the pregnant woman, the opinion of one RMP in terms of Section 5 If there are substantial foetal abnormalities, with the approval of the Medical Board in terms of Section 3(2B) read with Rule 3A(a)(i)
- From a perusal of the Act and the Rules framed thereunder, as well as
the Judgment of the Apex Court in X vs. Union of India and Another, 2023
SCC OnLine 1338, it is amply clear that a pregnancy which is beyond 24
weeks can only be terminated if requirements provided under Section 5 of
the MTP Act are satisfied and the decision has been made to save the life of the pregnant woman or to the satisfaction of Section 3(2)(b) and Section
3(2)(a)(i) for substantial foetal abnormalities.
- In the case at hand, the Petitioner is an unmarried woman carrying 28
weeks pregnancy. The ultrasound report conducted on 25.01.2024 reads as
under:-
- A perusal of the report shows that there is no congenital abnormality
in the foetus nor any danger to the mother to carry on with the pregnancy
which will mandate termination of the foetus. Since the foetus is viable and
normal, and there is no danger to the Petitioner to carry on with the
pregnancy, foeticide would neither be ethical nor legally permissible. The
Petitioner would have to be induced for delivering the child and such
delivery could be detrimental to the mental and physical health of the
newborn since it would be a pre-term delivery. It could also be detrimental
to the mother for her future pregnancies.
- The Petitioner’s case is also not covered by the guidelines dated
06.08.2018 on which the Petitioner places reliance. According to these
guidelines relied upon by the Petitioner, medical termination of pregnancy
even beyond 24 weeks is permitted only in cases of minor girls who are rape victims or when there are congenital abnormalities in the foetus. Since the present case does not fall under any of the categories, this Court is not
inclined to accept the prayer of the Petitioner of foeticide.
- The Petitioner is already seven months pregnant with a healthy and
viable foetus. The prayer sought for by the Petitioner for a direction to the
All India Institute of Medical Sciences (AIIMS) for premature termination
of pregnancy/delivery of the child cannot be acceded to by this Court since
the case of the Petitioner does not fall within the four corners of the MTP
Act and the Rules framed thereunder which hold the field.
- If the Petitioner wants to approach AIIMS for delivery and the future
course of action, it is always open for the Petitioner to approach the AIIMS
and this Court is sure that AIIMS, being a premier institute, would render all
facilities and advise the Petitioner with regard to her pregnancy.
- If the Petitioner is inclined to give the new born child to adoption,
then the Petitioner is at liberty to approach the Union of India and the Union
of India is directed to ensure that the process of adoption takes place at the
earliest and in a smooth fashion.
- This Court is not inclined to grant any of the prayers as sought for by
the Petitioner herein.
- With these observations the writ petition is dismissed along with
pending application(s), if any.
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