ABC vs. State of Maharashtra, held that it was the woman and not the medical board who could make this decision under Section 3(2B) of MTP Act.

In a recent judgment, the Bombay High Court allowed a 33-week pregnant woman to terminate
her pregnancy under Section 3(2B) of the Medical Termination of Pregnancy Act, 1971 (MTP
Act). The MTP Act allows for the termination of pregnancies within the 20-24 week timeframe
under certain conditions.
Previously, the Supreme Court had set a precedent in the case of X vs. NCT of Delhi, where it
ruled that even unmarried women could terminate their pregnancies within the 20-24 week
timeframe as provided by the MTP Act.
The Bombay High Court’s judgment is significant because it extends the scope of pregnancy
termination beyond the usual 20-24 week limit. This interpretation opens up possibilities for
women who may have exceptional circumstances necessitating a late-term abortion.
It is important to note that the specific details and reasoning behind the Bombay High Court’s
judgment may require further examination to fully understand the nuances and implications of
their decision.

Facts of the case

The petitioner, unable to care for a child with such conditions, sought termination of the
pregnancy.
The Medical Board constituted under the MTP Act denied the request for termination due to the
advanced gestation period exceeding the permitted 24 weeks. However, the court intervened and
asked the board to reassess the decision considering two key issues. First, whether the infant
born with these conditions would require extensive and continuous medical intervention, and
second, whether terminating the pregnancy at this stage posed any risk or danger to the
petitioner’s physical and mental well-being.
The report submitted to the court stated that the foetal deformity could be corrected at
government and major municipal Corporation hospitals free of cost. Taking into account the
advanced gestational age, the Medical Termination of Pregnancy was not recommended even on
the court’s directions.
In November 2022, Citizens for Justice and Peace published a legal resource providing an
overview of abortion laws in India. The resource discussed the origin, development, and current
status of these laws, including the Medical Termination of Pregnancy Act, 1971, and its 2021
amendment. It also examined the Supreme Court of India’s three-judge bench decision in X vs.
Principal Health Secretary, NCT of Delhi, comparing it to the contrasting verdict of Dobbs vs.
Jackson Women’s Health Organization by the Supreme Court of the United States (SCOTUS).n
this case, the petitioner had undergone a foetal anomaly scan at 14 weeks of pregnancy, which
indicated a healthy foetus. However, at 29 weeks, another scan revealed that the foetus had
microcephaly and lissencephaly, two conditions requiring special care and potentially leading to
life-threatening situations before the age of 10.

Legislation

Section 3 of the Medical Termination of Pregnancy (MTP) Act outlines the conditions under
which a registered medical practitioner will not be held guilty under the Indian Penal Code for
carrying out a pregnancy termination. According to the act, if the pregnancy is up to 20 weeks
old, the opinion of one registered medical practitioner is required. If the pregnancy is up to 24
weeks old, the opinion of two registered medical practitioners is necessary.
The opinions that matter in these cases are as follows: first, if continuing the pregnancy poses a
risk to the life of the pregnant woman or could cause grave injury to her physical or mental
health, and second, if there is a substantial risk that the child, if born, would suffer from serious
physical or mental abnormalities.
Section 3(2B) of the MTP Act states that the provisions related to the length of pregnancy (20 or
24 weeks) do not apply to the termination of pregnancy if it is necessitated by the diagnosis of
any substantial fetal abnormalities confirmed by a Medical Board.
Section 3 of the MTP Act provides guidelines and conditions under which a registered medical
practitioner can perform a legal pregnancy termination without facing legal consequences.
Section 3(2B) specifically allows for termination in cases where substantial fetal abnormalities
are diagnosed by a Medical Board, regardless of the length of the pregnancy.

Arguments

In the case, the petitioners presented two arguments. First, they contended that the court is not
bound by the recommendation of the medical board. They asserted that the court has the
authority to make an independent decision regarding the termination of pregnancy, irrespective
of the board’s recommendation.
Secondly, the petitioners argued that Section 3(2B) of the MTP Act does not explicitly address
the scenario of late detection of fetal abnormalities. As a result, they invoked the court’s writ
jurisdiction, asserting that the Medical Board does not have discretionary power to determine
whether a termination can be performed or not. According to their argument, the board’s role is
limited to assessing the presence of substantial fetal abnormalities and evaluating the safety of
medical termination based on the mother’s mental and physical health.
Furthermore, the petitioners emphasized that the uncertainties associated with pregnancy and
childbirth can sometimes present a woman with unexpected choices late in her pregnancy. They
contended that no Medical Board should exceed the boundaries set by the statute that establishes
it.
the petitioners claimed that the court has the authority to make an independent decision regarding
the termination of pregnancy, Section 3(2B) does not explicitly cover late detection of fetal
abnormalities, and the Medical Board should not exceed its designated role as defined by the law.

Judgment

In this judgment, the court drew upon the values and principles established in the recent Supreme
Court case of X vs. NCT. The court emphasized that refusing a medical termination of pregnancy
solely based on a delay would not only condemn the fetus to a compromised life but also deprive
the petitioner-mother of the positive aspects of parenthood, violating her dignity, reproductive
autonomy, and decision-making rights.
The court interpreted Section 3(2B) of the MTP Act as a provision of “directory nature” that
grants the Medical Board the power to suggest and recommend, rather than an “empowering
section” that gives the board final authority over termination decisions. The court noted that the
Medical Board’s consideration of the curability of fetal anomalies, free of cost, did not account
for the additional effort and care the parents would have to provide on a daily and weekly basis,
knowing that the child may face life-threatening diseases by the age of 10.
Based on the principles of a woman’s autonomy over her body and pregnancy, as long as the
conditions specified in the law are fulfilled, the court held that the decision rests with the
petitioner alone. The right to choose belongs to the petitioner and should not be undermined by
the Medical Board or the court once the conditions outlined in the law are satisfied.
then the court emphasized the petitioner’s informed decision-making, the importance of her
autonomy, and the responsibility to uphold her rights within the framework of the law.

Conclusion

The judgment, while recognizing the expansive meaning of autonomy for women under Section
3(2B) of the MTP Act, explicitly excludes unmarried women from exercising the same
autonomy. The Bombay High Court clarified that it was only considering the rights and situation
available to adult married women under Section 3 of the MTP Act. The court’s reasoning for this
partial conclusion was that the petitioners did not specifically request the court to consider the
case of unmarried women. However, the judgment did not provide a clear rationale as to why
this logic of reproductive autonomy within the bounds of the law would not be applicable to
unmarried women.
Despite being a progressive expansion of the Supreme Court’s judgment in X vs. NCT, there
remains a significant gap regarding the applicability of reproductive autonomy to unmarried
women. This gap highlights the need for further clarification and potentially future legal
challenges to address the issue and ensure equal access to reproductive rights for all women,
irrespective of their marital status