Why did Bombay High Court permit a 25-week pregnancy to be terminated at a private hospital despite the 24-week limit?

An exceptional case to the rule the Bombay High Court on February 13 provided permission to 35-year-old woman to get her 25-week pregnancy on her own choice terminated at a private hospital.

The woman did not wanted to continue her pregnancy and to abort her child under the Medical Termination of Pregnancy (MTP) Act, 1971. A Medical Board of doctors examined and found her fit for abortion, observed the foetus had skeletal dysplasia, a genetic disorder that affects bones and neurological functioning. It has high postnatal morbidity and requires multiple corrective surgeries from state-run J J Hospital in Mumbai.

What is the law on abortion in India?

Under section 3 of the MTP Act pregnancy up to 20 weeks gestation may be terminated on the advice of one registered medical practitioner. Between 20-24 weeks, it can be done only if two registered medical practitioners advise for it.

Also, Rule 3B of the MTP Rules of 2003, formed under the MTP Act, allows abortion between 20-24 weeks for certain categories – rape/sexual assault victims, minors, change of marital status of the woman during pregnancy, women with physical disabilities or mental illness.

After 24 weeks, the MTP Act mandates that the state government constitute medical boards of expert doctors in each district to decide whether to permit termination of pregnancy in case of serious foetal abnormality.

Doctors must also consider whether a woman’s life would be at risk if the pregnancy continued or would result in “serious injury to her physical or mental health”. They have to confirm if there is “substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality”.

What are the rules for abortion in private hospitals?

Section 4 of the MTP Act says a pregnancy can be terminated at a hospital established or maintained by the government, or a place approved under the MTP Act by Government or District Level Committee headed by a Chief Medical Officer or District Health Officer.

The committee, under Rule 5 (6) of the MTP Rules, can consider the application by the private hospital and issue a certificate of approval for abortion. ‘Form A’ has to be submitted for approval for termination of pregnancy and it has two categories – termination of pregnancy up to 12 weeks, and pregnancy up to 24 weeks.

What did the High Court observe?

There was "utmost urgency" in the petitioner's case to end the pregnancy at an advanced stage, according to a bench of Justices Revati Mohite-Dere and Neela K. Gokhale. It also mentioned that the petitioner's preferred private hospital's dean had provided an affidavit stating that the hospital met MTP Rules requirements and was authorized to perform sonograms and other procedures.

"We allow the Petitioner to medically end the pregnancy after taking into account the Medical Board's findings and opinion, her medical condition, and her right to reproductive freedom, autonomy over her body, and choice," the ruling stated.

It left open for discussion, nevertheless, the more general problem of ambiguity surrounding pregnancy termination at private hospitals. In accordance with Rule 5(2) of the MTP Rules, the bench stated on Thursday that it would discuss the lacunae in Form A at the upcoming hearings.