Source – Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Aswathy Surendran v. Union of India, has held that medical termination of pregnancy can only be sought in cases where the foetus has substantial abnormalities diagnosed by the competent Medical Board.

What was the Background of Aswathy Surendran v. Union of India Case?

• In this case, the petitioners are wife and husband, and they apprehend that the foetus which the first among them is carrying, may be suffering from substantial abnormalities.
• A writ petition has been filed before the Kerala High Court by the petitioners for the termination of pregnancy.
• They claimed that the foetus had bilateral enlarged echogenic Kidneys for the foetus, with presence of micro cysts in both of them' and it would be born with grave abnormalities.
• The Court thus sought reports from the District Medical Board constituted by the Government Medical College, Ernakulam.
• The report suggested that pregnancy can be continued since there was no lethal foetal anomaly and other health conditions can only be assessed after the birth of the baby.
• The High Court closed the writ petition without any further orders.

What were the Court’s Observations?

• Justice Devan Ramachandran observed that statutorily, under the mandate of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (MTP Act), it is only in cases where the foetus has substantial abnormalities diagnosed by the competent Medical Board, can the termination of pregnancy be sought for.
• The Court further held that indubitably, the opinion of the experts is conclusive that the foetus is doing well, though may be born with a renal abnormality, however, without any definiteness as to the scale which would present, varying from mild to severe. Apodictically, therefore, this is not a case where this Court can accede to the request of the petitioners, particularly when the foetus has attained the gestation of 30 weeks.

What are the Relevant Legal Provisions Involved in it?

MTP Act, 1971

About:

• The MTP Act came into force on 1^st of April 1972.
• The MTP Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks to 24 weeks pregnant to abort with the help of registered medical practitioners.
• 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.

Section 3(2)(b) of MTP Act:

• This section states that where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that—

(i) 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

(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Case Law

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.