Source: Bombay High Court

Why in News?

Recently, the Bombay High Court in the matter of X.Y.Z. v. The Dean of B.J., Government Medical College and Ors., has held that in cases where continuing pregnancy would cause grave mental injury to the pregnant woman, abortion can be allowed.

What was the Background of X.Y.Z. v. The Dean of B.J., Government Medical College and Ors. Case?

• In this case, the 19 years old petitioner had approached the Bombay High Court seeking permission to terminate her 25-weeks pregnancy.
• The pregnancy is not owing to any crime but is due to a consensual relationship.
• The High Court noticed that the private medical report annexed to the Petition had indicated no abnormality with the foetus.
• The High Court called upon the Medical Board of the B.J. Government Medical College and Sassoon Hospital, to provide its assessment in compliance with the Medical Termination of Pregnancy Act, 1971 (MTP Act).
• Upon review of the report, it is clear that the Petitioner is carrying a single live intrauterine foetus, aged at 25 weeks and 6 days.
• The Medical Board examined the Petitioner, counseled her and has returned an explicit finding that considering the woman’s current psychological status, sociocultural and economic conditions, continuation of pregnancy can lead to grave psychological injury.
• The findings returned in the Medical Board’s report are essentially that the Petitioner would suffer grave psychological injury if the pregnancy is continued.
• The High Court permitted the petitioner to undergo the termination procedure at the Sassoon Hospital.

What were the Court’s Observations?

• A division bench of Justices N.R. Borkar and Somasekhar Sudaresan observed that abortion can be allowed in cases where continuing pregnancy would cause grave mental injury to the pregnant woman. Such allowance cannot be limited to pregnancy emanating from sexual assault.
• The Court relied on the judgment in the case of A (Mother of X) v. State of Maharashtra and Anr. (2024):
  • The Supreme Court held that a pregnant person's health and consent are paramount in such cases. It was also highlighted that the decision to terminate a pregnancy is deeply personal, and intertwined with dignity, autonomy, and reproductive choice under Article 21 of the Constitution of India, 1950 (COI).

What are the Legal Provisions Related to Abortion in India?

About Abortion:

• Abortion is the deliberate termination of a pregnancy, typically performed during the first 28 weeks of gestation. It can be achieved through various medical procedures or medications, depending on the stage of pregnancy and the preferences of the individual seeking abortion.
• Abortion can be a highly contentious and debated topic, often involving ethical, moral, religious, and legal considerations.

Legal Provisions Related to Abortion in India:

• Until the 1960s, abortion was prohibited in India, and violating this led to imprisonment or fines under Section 312 of the Indian Penal Code, 1860 (IPC).
• The Shantilal Shah Committee was set up in the mid-1960s to investigate the need for abortion regulations.
  • Based on its findings, the MTP was enacted, allowing safe and legal abortions, safeguarding women's health, and reducing maternal mortality.

MTP Act:

About:

• The MTP Act came into force on 1^st of April 1972.
• The MTP Act allowed pregnancy termination by a medical practitioner in two stages:
  • A single doctor's opinion was necessary for abortions up to 12 weeks after conception.
  • For pregnancies between 12 to 20 weeks old, the opinion of two doctors was required to determine if 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 if 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” before agreeing to terminate the woman’s pregnancy.
• This Act was updated more comprehensively in 2020, and the revised law became effective in September 2021 with the following amendments.
  • Increase in the maximum gestational age at which a woman may obtain a medical abortion from 20 weeks under the MTP Act of 1971 to 24 weeks.
  • A single qualified medical professional’s opinion might be used to access the MTP up to 20 weeks into the pregnancy and from 20 weeks up to 24 weeks, the opinion of two registered medical practitioners would be required.
  • After seeking the opinion of two registered medical practitioners, the pregnancy can be terminated up to 24 weeks of gestational age under the conditions given below:
    • If the woman is either a survivor of sexual assault or rape or incest;
    • If she is a minor;
    • If there is a change in her marital status during the ongoing pregnancy (due to widowhood or divorce);
    • If she suffers from major physical disabilities or she is mentally ill;
    • Termination of pregnancy on the grounds of fetal malformation incompatible with life or the possibility of a seriously handicapped child being born;
    • If the woman is situated in a humanitarian setting or disaster or stuck in the emergency as declared by the Government.
  • Abortion is performed based on fetal abnormalities in cases where pregnancy has progressed over 24 weeks.
    • A four-member Medical Board, established in each state under the MTP Act, must grant permission for this type of abortion.

Case Laws:

• In X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi (2022), the Supreme Court delivered a significant judgment that there should not be any distinction between married and unmarried women in seeking an abortion of pregnancy in the 20-24 weeks terms arising out of a consensual relationship. It stated that all women are entitled to safe & legal abortion.
• XYZ v. State of Gujarat (2023), it was held that the medical board or the High Court cannot refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription.