Law, Precedents Favour Abortion Beyond 20 Weeks in Life-Threatening Cases

However, since courts usually adhere to recommendations of medical boards in such cases, it is unclear what remedy a pregnant woman has if the board rules against her.

Lawyers confer against the backdrop of the Supreme Court. Credit: Shome Basu

Lawyers confer against the backdrop of the Supreme Court. Credit: Shome Basu

New Delhi: The Supreme Court will hear on July 25 a writ petition filed by X (name withheld), challenging the validity of Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act, which bars abortion after 20 weeks of pregnancy.

X is in the 24th week of her pregnancy. Her foetus suffers from anencephaly, an abnormality that refers to the absence of a major portion of the brain, skull or scalp during embryonic development.

Her plea is that the MTP Act’s provision restricting a pregnant woman’s right to abort beyond 20 weeks of pregnancy is unreasonable, arbitrary and violative of the right to life and equality.

The Supreme Court bench comprising of justices J.S. Khehar and Arun Mishra on July 22 directed the Centre and the Maharashtra government to constitute a medical board to examine her on July 23. The report of the examination will be presented to the bench on July 25.

Whatever the outcome of this case, law and legal precedents favour abortion after 20 weeks of pregnancy if the health of the foetus is likely to threaten the life of the mother, said experts The Wire spoke to.

Ironically, however, if the conclusion of the medical board is against abortion, it will be difficult for the Supreme Court to go against it irrespective of the law and the legal precedents.

The law

Section 3 of the Act details when pregnancies may be terminated by registered medical practioners. Sub-section 2 of this provision says:

Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,

  • Where the length of the pregnancy does not exceed 12 weeks if such medical practitioner is, or
  • Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than two registered medical practitioners are

Of opinion, formed in good faith, that

  • 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
  • There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

This provision is followed by two explanations which qualify it. They are as follows:

Explanation 1: Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2: Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Sub-section 4 says no pregnancy of a woman who has not attained the age of 18 years or who, having attained the age of 18 years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

In all other cases, the consent of the pregnant woman is a must for terminating the pregnancy.

Although Section 3 sets a clear bar on abortion after 20 weeks, it has to be read with Section 5 (1) of the Act, which says when sections 3 and 4 shall not apply:

The provisions of Section 4 and so much of the provisions of sub-section (2) of Section 3, relating to the length of the pregnancy and the opinion of not less than two registered medical practioners, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

Case of X

According to X’s senior counsel, Colin Gonsalves, the petitioner is too sick to travel to New Delhi to appear before the medical board if constituted at the All India Institute of Medical Sciences (AIIMS), New Delhi, as originally suggested by the solicitor general, Ranjit Kumar. Thereupon, and as agreed to by the Central and Maharashtra governments, the Supreme Court bench directed the constitution of a medical board, and her examination, at a hospital in Mumbai on July 23.

If the medical board’s report, to be submitted to the Supreme Court on July 25, concludes that continuing the pregnancy is likely to threaten the life of the woman, then Section 5 of the Act will be invoked. The Supreme Court is likely to permit abortion in her case, as she would then qualify for the exemption provided in Section 5.

In that eventuality, the Supreme Court may avoid the consideration of her challenge to the constitutionality of Section 3(2)(b) of the Act.

This is because the Supreme Court would like to await the outcome of the draft bill prepared by the government which is in circulation amongst stakeholders for comments. The draft bill amends Section3(2)(b) to increase the ceiling from 20 weeks to 24 weeks of pregnancy to qualify for termination.

The precedents

As the Supreme Court examines X’s case on July 25, it will have three important precedents to rely on. In all three, the pregnancy was 24 weeks old and the opinion of the medical board which examined the pregnant woman prevailed in court.

In Chandrakant Jayantilal Suthar v. State of Gujarat, the Supreme Court bench comprising of justices Anil R. Dave and Kurian Joseph on July 28, 2015 ruled on a petition filed by the guardian of a minor girl, who had become pregnant after a doctor she went to consult when she had typhoid allegedly raped her.

The bench had then ordered that the pregnant girl, who had crossed the 24th week of her pregnancy, must be examined by the three most senior available gynaecologists of the Civil Hospital, Ahmedabad, along with the doctor who first discovered her pregnancy and a clinical psychologist attached to the Civil Hospital.

The bench made it clear that if this team of doctors was of the view that abortion was immediately necessary to save life of the pregnant girl, and if the minor and her guardian desire to go through such an abortion, the concerned doctor of the Civil Hospital should perform the surgery without needing any further permission from the court.

If there is no unanimity amongst the doctors, the majority view of the doctors shall prevail, the bench had held. The bench added that in case of an abortion, the hospital authorities should take necessary tissue from the foetus for DNA identification in connection with the investigation of the case against the rape accused.

The medical board constituted by the Supreme Court concluded that the pregnancy of the minor girl must be aborted to save her from mental trauma. Based on that conclusion, the abortion was performed without seeking permission from the Supreme Court.

The case was disposed of as infructuous only on July 12 this year.

Ironically, the Gujarat high court, whose judgment was appealed against in the Supreme Court, had held in this case that the minor girl did not qualify for the exemption provided by Section 5 of the Act, although it had admitted that it was painfully conscious of the implications of its decision on her life.

“The physical, mental, emotional and psychological trauma faced by the victim is formidable,” the high court had concluded. Yet it did not find that Section 5 would be valid. The high court erred in assuming that mental trauma caused by rape, as well as her being a pregnant minor, would not affect her physical fitness to deliver a healthy child and be a healthy mother.

The high court rejected her plea for an abortion, even though medical opinion suggested that a safe abortion could be performed despite her completing 24 weeks of pregnancy. Fortunately for her, the Supreme Court reversed this erroneous decision in time.

R v State of Haryana 

R (name withheld) and another v State of Haryana, decided by justice Paramjeet Singh Dhaliwal of the Punjab and Haryana high court on May 30, 2016, is another judgment which may be of relevance. The Supreme Court could refer to it if it wishes to avoid the consequences of delayed decision with regard to abortion, according to experts.

In R v Haryana too the petitioner was a minor. She was pregnant as a result of rape and was in the 24th week of her pregnancy.

The amicus curiae in this case, Tanu Bedi, contended before the high court that the petitioner was the sole decision maker on the basis of the medically informed consent either to terminate the pregnancy or to continue with it.

Bedi further reasoned that while the protection of the rights of an unborn child is an obligation cast upon the state under constitutional provisions, in view of the unambiguous language of Section 5 of the MTP Act, a conflict between the right to life of the pregnant woman and the right to life of an unborn child would yield in favour of the woman.

More importantly, to force a woman to continue with a pregnancy she does not want is an infringement on the right to privacy and dignity of the woman as well as an infringement of the right to a healthy and dignified life of the nascent life in her womb, she told the court.

It is a settled legal proposition that when a statutory provision conflicts with a constitutional guarantee, the latter will prevail. Right to dignity is a constitutional guarantee under Article 21.

As the high court’s judgment explains, unwed teenagers who may be pregnant because of a rape may not know that they are pregnant until they feel the baby kick. In the case currently before the Supreme Court, the petitioner is not a minor, but is pregnant because of the false promise of marriage by her partner, as a result of which she could not terminate pregnancy before 20 weeks.

The Punjab and Haryana high court has held that medical technology has leaped beyond the MTP Act and assumptions of medical ethics.

The high court also took into consideration the petitioner’s threat to commit suicide if she was denied permission to abort. Bedi mentioned this as a relevant factor in reaching a conclusion under Section 5 of the Act that abortion is necessary to save her life.

The high court also considered the medical opinion which suggested that there is a possibility of harm to the patient due to the social and emotional consequences of continuing the pregnancy. This, the court held, leads to the inference that it will certainly cause grave injury to her physical and mental health.

Yet the high court declined her plea for immediate abortion because the report submitted by the medical board set up to examine her at the Post Graduate Institute of Medical Education and Research, Chandigarh, decided against abortion, saying it would be unethical.

The report’s silence on whether the patient satisfies the requirements of Section 5 of the Act disappointed the high court, which then directed AIIMS to conduct a second examination on her and submit a report.

While what this second report says is not known, the high court appears to be helpless, even if it wants to provide timely relief to the petitioner and allow her to end her pregnancy.

Even as the next hearing in this case is listed for July 27, it is clear that doctors who examine a pregnant mother, with a plea for immediate abortion after 20th week, must include a psychologist. The psychologist’s views on the pregnant woman’s emotional strength to continue the pregnancy must be binding on other doctors on the board.

Yet another case from Gujarat

The judgment rendered by justice Sonia Gokani of the Gujarat high court on February 19, 2016, permitting MTP after 24 weeks of pregnancy, deals with a unique case.

The pregnant woman in this case was 18 years old and a rape survivor. She attempted suicide by consuming acid when she found about her pregnancy and was rescued. The consumption of acid damaged her organs, including her oesophagus and liver. Surgery could not be performed on her oesophagus because of the pregnancy.

The high court set up a medical board comprising of six doctors to examine her on February 18. This team of doctors gave their opinion that continuing the pregnancy would adversely affect her mental status, though it would not affect her physical status. The doctors also concluded that the health and survival chances of the new born would be very poor due to extreme prematurity.

The high court, applying the ‘best interests’ test as the parameter, held that termination must be permitted in the best interest of the woman.

It is debatable, however, whether the court can go against the medical opinion given by a team of doctors while applying the best interests test. What remedy a pregnant woman has if the medical board ignores her mental health concerns and deems her physically fit to continue the pregnancy remains unclear.