Termination of Pregnancy beyond the period of 20 weeks

BACKGROUND


Termination of pregnancy is not legal in India except for certain exceptional cases. In such cases the court may allow termination after 20 weeks of pregnancy. The Medical Termination of Pregnancy Act,1971 provides for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.

Section 3 Sub-section (2) clause (a) and (b) sub-clause (i) and (ii)[1] provides that a pregnancy may be terminated by a registered medical practitioner-

(a) Provided that the duration of pregnancy does not exceed Twelve weeks or if it exceeds twelve weeks it does not exceed twenty weeks with recommendation of at least two medical professionals who provide that it is in good faith else-

  1. The continuation of the pregnancy would be a risk to the life of the pregnant woman. This risk may even involve Physical as well as medical injury.

  2. The medical professional must also in such condition provide that the birth to the child would be of substantial risk and to the extent of being handicapped.

Though this section provides no provision for the termination of pregnancy beyond 20 weeks. The recent judgement passed by Delhi High court, with bench was headed by Justice N.J Jamadar and Justice R.M. Borde provided that whether it would be desirable to terminate the pregnancy beyond twenty weeks in view of the fatal anomalies. The issue emerged from the case Vaishali Pramod Sonawane v. Union of India.[2]


CURRENT ISSUE

The facts of the case provided:

  1. That Vaishali Pramod Sonawane is a lade carrying pregnancy of 24 weeks approximately. This is the age of gestation of foetus.

  2. That on being examined by a sonologist, it was reported to her that the pregnancy has certain congenital anomalies. This further provided that the continuation of the pregnancy was not desirable due to presence of substantial risk.

  3. That there is a risk of a child being born would suffer from such Physical and mental abnormalities as to be seriously handicapped.

  4. That at last the board at B.J Medical College, Pune mentioned that the pregnancy should be terminated at gestational age.


The Division Bench of High court held that with regards to section 3(2) of Medical Termination of Pregnancy Act, 1971 as mentioned above which provides a cap of 20 weeks for permitting a pregnant woman of terminating the pregnancy, it would be logical to study Section 5 of the same act which provides that –

The provisions mentioned in section 3 and 4[3] will not apply in following conditions:

  1. With regards to the duration of pregnancy and on the recommendation of at least two medicals professionals as mentioned in sec 3 and 4 will not apply in the situation where the medical practitioner provides that such case of pregnancy requires termination immediately in order to save the life of the pregnant woman.

  2. If such termination takes place with the recommendation of the unregistered medical professional, he shall be punishable for offence under Indian Penal Code.

Thus, under this exceptional case, the request of the pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks can be considered. Provided that the procedure is carried out in the presence of and under supervision of an expert of Gynaecologist and a Paediatrician.


CONCLUSION

The High Court observed: “Although, sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971 put a cap of 20 weeks for permitting the pregnant woman to terminate the pregnancy, on consideration of Section 5, it would be logical to conclude that the contingencies referred in clauses (i) & (ii) of sub-section 2(b) of Section 3 will have to be read in Section 5 of the Act and as such in an exceptional case, the request of a pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks can be considered.”[4]

  1. The brief study of the case provides that the termination of pregnancy beyond 20 weeks is desirable in view of fatal anomalies only after studying Section 3 of Medical Termination of Pregnancy Act, 1971 in connection with Section 5 of the said Act.

  2. The above case gained effect from the decision passed by Calcutta high court regarding the same issue.

  3. The Calcutta High Court allowed Termination of 26 weeks pregnancy on finding that the foetus had congenital defect.

  4. “We must hasten to add here that even though in the case of pregnant women, there is a compelling State interest in order to protect the life of the prospective child, there is a corresponding obligation – nay, a bounden duty – on the part of the State to provide quality and dignity to such life and such quality and dignity of life should extend to the mother as well, whose life is paramount at the stage of pregnancy. On the other hand, if it is compromised, the provisions contained under section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971, cannot operate as an absolute bar and can extend beyond 20 (twenty) weeks.", the Court had held.

[1] Medical Termination of Pregnancy Act,1971


[2] (Lodge) No. 1694 of 2019 (Delhi High Court)


[3] Medical Termination of Pregnancy Act,1971


[4] The SCC Online Blog https://www.scconline.com/blog/post/tag/medical-termination-of-pregnancy-act/


Submitted by,

Palak Ratwani,

Year II, B.Com.LL.B. (Hons.),

Amity Law School, Lucknow.


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