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  • Shantanu Dubey

TERMINATION OF PREGNANCY WITHOUT HC PERMISSION: A landmark direction by Bombay High Court

Bombay High court extended its helping hand to women by hearing three petitions filed by them who were seeking permission to terminate their pregnancy medically at the time when the length of their respective pregnancies had exceeded 20 weeks. If the pregnancy has exceeded 20 weeks then it could be medically terminated by a registered medical practitioner as held by division bench of Justice AS Oka and Justice MS Sonak and this action doesn’t require the permission of High Court, but condition laid down by the respected court is that the medical practitioner should be of the opinion that termination of pregnancy at such a stage is inevitable in order to reinstate the life of the pregnant women. In addition to this court held that if a case arises where attempts are made to terminate the pregnancy in good faith owing to the reason mentioned above, still the child is born alive due to unavoidable circumstances, then the parental responsibility of the child will be handed over to the state if the parents are either not in a condition to take the responsibility of the child or are unwilling to take the responsibility of the newborn under the doctrine of ‘parent patriae’. The state will also be obliged by the responsibility under Juvenile Justice( Care and Protection of Children) Act, 2015.

In respect to the pending of such petition owing to the upheaval of certain issues the court-appointed Senior advocate DJ Khambatta as an Amicus Curie to look upon this matter and held that, “This is because several such petitions are being filed in this Court seeking urgent reliefs. In matters of this nature, every passing day produces irretrievable changes in the status of the petitioners and foetus which they carry. These changes invariably have a direct impact upon the reliefs applied for in such petitions.” Citing the provision of section 5(1) of the Medical Termination of Pregnancy Act (enacted in 1972 and amended in 2002), the court held that the termination of pregnancy can be justified as per the act if continuance of such pregnancy can cause grave injury to the mental health of pregnant women or the where there is substantial risk to the physical or mental health of the infant, though there is no immediate risk to the life of the pregnant women. But under such circumstances, permission can only be granted if the expression ‘life’ mentioned in section5(1) is not restrained to mere physical subsistence or survival.

The moot question that formed an integral part of the issue raised by this discussion that was addressed by the bench is that “Whether the expression “life” in section 5 of the MTP Act must be construed narrowly by adopting the principle of literal interpretation or liberally by adopting the principle of purposive interpretation?” Also, the court specifically mentioned that apart from the conditions mentioned above, the termination of pregnancy mandatorily require the permission of the high court.

The court concluded by directing the state to look upon the establishment of medical boards in each district so as to examine the cases of women who are seeking medical termination of pregnancy. Also, the state has been directed to provide essential facilities to women in rural areas in order to prioritise their hygiene and health.

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