Bombay HC allows termination of 28-week-old foetus

Bombay HC allows termination of 28-week-old foetus

NISHTHA SINGH 

BACKGROUND: -

Abortion (or termination) is the ending of a pregnancy by removal or expulsion of a fetus through medical procedures before it can survive outside the uterus i.e. before completion of the gestational period.

Abortion in India is legal in certain circumstances. It can be performed on various grounds until 20 weeks of pregnancy. In exceptional cases, a court may allow a termination after 20 weeks.

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860,[6] describing it as intentionally "causing a miscarriage", except in cases where abortion was carried out to save the life of the woman.

With the arrival of the Medical Termination of Pregnancy (MTP) Act in 1971, termination of pregnancy was made legal up to a broad range of 20 weeks of gestation with certain terms:

• When the continuation of the pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health
• When there is a substantial risk that the child is born, would be seriously handicapped due to physical or mental abnormalities
• When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman)
• When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute a grave injury to the mental health of the woman).

The MTP Act specifies:

 (I) Who can Terminate a Pregnancy?

 (ii) That till when a Pregnancy can be Terminated?

 (iii) And that, where can a Pregnancy be Terminated?

CURRENT ISSUES (Bombay HC allows termination of 28-week-old foetus): -

The Bombay High Court recently allowed a petition filed by a 28-week pregnant woman seeking permission for termination of pregnancy as several deformities were found in the fetus during sonography.

According to the petitioner, there is a substantial risk that if the child is born, it would suffer from serious physical or mental abnormalities which would render the child severely handicapped.

The division bench of Justice Akil Kureshi and Justice SJ Kathawalla allowed the writ petition after perusing through the medical board's opinion. A medical board comprising of heads of various departments was constituted by the Dean of Sir JJ Group of Hospitals after another bench of Justices RM Borde and NJ Jamdar examined the report of the sonologist on August 8.

The court directed the Dean to constitute the said medical board with the Heads of various Departments like Gynecology, Pediatrics, Cardiology, Radiology, and Psychiatry.

The medical board opined:

"Upon examination after careful study of multiple sonography reports, it is confirmed that the fetus suffers from serious physical condition 'Semilobar Holoprosencephaly and complete bilateral cleft lip and palate.' The condition of the fetus fulfils the criteria of 'substantial risk of serious physical handicap'."

After perusing through the said report Court concluded that the petition must be allowed and the petitioner should undergo medical termination of pregnancy.

Thereafter, Advocates Uttam Dubey and Siddhesh Rajput appeared on behalf of the petitioner and informed the Court last Tuesday that their client was not in a position to bear the expenses of the medical termination of pregnancy. Thus, the bench requested the Dean of Sir JJ Group of Hospitals to arrange for the said medical termination free of costs for the petitioner. Thus Bombay HC allows termination of 28-week-old foetus.

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CONCLUSION: -

• The total number of spontaneous/induced abortions that took place in India in 2016-17 was 970436, in 2015-16 was 901781, in 2014-15 was 901839, and in 2013-14 was 790587. Ten women reportedly die due to unsafe abortions every day in India.

• Certain amendments have been made in the Medical Termination of Pregnancy (MTP) Act of 1971 to increase the availability of safe and legal abortion services for women in the country, such as:

• Expanding the provider base
• Increasing the upper gestation limit for legal MTPs
• Increasing access to legal abortion services for women
• Increasing clarity of the MTP law.

• The MTP Act allows for termination of pregnancy up to 20 weeks of pregnancy. In case termination of pregnancy is immediately necessary to save the life of the woman, this limit does not apply (Section 5 of the MTP Act). 
• There are however cases of diagnosed fetal abnormalities and cases of women who are survivors of sexual abuse who have reached out to the Court with requests for Termination of pregnancy beyond 20 weeks. This flexibility of the MTP Act is important as it safeguards the mental and wellbeing of women.

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