Supreme Court Refuses Medical Termination of Pregnancy Beyond 24 Weeks: X vs. Union of India (2023)

Introduction

Date of the Judgment: 16 October 2023

Citation: 2023 INSC 919

Judges: Dr Dhananjaya Y Chandrachud, CJI, J B Pardiwala, J, Manoj Misra, J

Can a woman seek a medical termination of pregnancy (MTP) at any stage of gestation? The Supreme Court of India recently addressed this critical question in a case where a woman sought to terminate her pregnancy at approximately 26 weeks. The court ultimately refused the request, citing the statutory limits and the viability of the foetus. This case highlights the complex interplay between a woman’s reproductive rights and the legal framework governing MTP in India. The judgment was delivered by a three-judge bench comprising Chief Justice Dr. Dhananjaya Y Chandrachud, Justice J B Pardiwala, and Justice Manoj Misra.

Case Background

The petitioner, a 27-year-old married woman with two children, discovered her pregnancy after 20 weeks due to lactational amenorrhea. She sought to terminate the pregnancy due to post-partum depression and financial constraints. The petitioner and her husband had already two children, the younger of which was about one year old. They approached several hospitals, but were unable to get the pregnancy terminated due to the restrictions imposed by the Medical Termination of Pregnancy Act, 1971. The petitioner then approached the Supreme Court seeking permission for medical termination of her pregnancy on the grounds of her mental health and financial constraints.

Timeline

Legal Framework

The Medical Termination of Pregnancy Act, 1971 (MTP Act) and the Medical Termination of Pregnancy Rules, 2003 (MTP Rules) govern the termination of pregnancies in India.

✓ Section 3 of the MTP Act specifies the conditions under which a pregnancy can be terminated.

✓ For pregnancies up to 20 weeks, one Registered Medical Practitioner (RMP) must be of the opinion that continuing the pregnancy would risk the woman’s life or cause grave injury to her physical or mental health, or that there is a substantial risk of the child suffering from serious abnormalities.

✓ For pregnancies between 20 and 24 weeks, two RMPs must hold the same opinion.

✓ Rule 3B of the MTP Rules (as amended in 2021) specifies categories of women eligible for termination up to 24 weeks, including survivors of sexual assault, minors, and women with disabilities.

✓ Section 5 of the MTP Act states that the provisions of Section 3 relating to the length of the pregnancy and the opinion of two RMPs shall not apply if the termination is immediately necessary to save the life of the pregnant woman.

✓ Section 3(2B) of the MTP Act states that the provisions of Section 3(2) relating to the length of the pregnancy shall not apply to the termination of a pregnancy by an RMP, where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

The MTP Act recognizes the autonomy of the pregnant woman and respects her right to choose the course of her life. The relevant provisions of the MTP Act are as follows:

“Section 3 – When pregnancies may be terminated by registered medical practitioners
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
2[(2) Subject to the provisions of sub- section (4), a pregnancy may be terminated by a registered medical practitioner, —
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) 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.
Explanation 1. –For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose
of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2. –For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.
(2B) The provisions of sub -section (2) r elating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.
(2C) Ev ery State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.
(2D) The Medical Board shall consist of the following, namely: — (a) a Gynaecologist; (b) a Paediatrician;
(c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Gov ernment or Union territory, as the case may be.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub- section (2), account may be taken of the pregnant woman’s actual or reasonably
foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.”

The relevant provisions of the MTP Rules are as follows:

“Rule 3B, MTP Rules : 3-B. Women eligible for termination of pregnancy up to twenty -four weeks. —
The following categories of women shall be considered eligible for termination of pregnancy under
clause ( b) of sub- section (2) Section 3 of the Act, for a period of up to twenty -four weeks, namely —
(a) survivors of sexual assault or rape or incest; ( b) minors;
(c) change of marita l status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of
Persons with Disabilities Act, 2016 (49 of 2016)];
(e) mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born
it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be
declared by the Government.”

“Section 5, MTP Act : 5. Sections 3 and 4 when not to apply. —(1) The provisions of Section 4, and so
much of the provisions of sub- section (2) of Section 3 as relate to the length of the pregnancy and the
opinion of not less than two registered medical practitioners, shall not apply to the termination of a
pregnancy by a registered medical practitioner in a case where he is of opi nion, formed in good faith,
that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”

Arguments

The petitioner argued that:

• She suffers from post-partum depression and her mental condition does not permit her to raise another child.
• Her husband is the only earning member of their family, and they already have two children to care for, along with other dependent family members.
• She has made a wilful and conscious decision to medically terminate her pregnancy and does not want to keep the baby even if it survives.

The Union of India argued that:

• The foetus is viable and has a strong possibility of survival.
• If the foetal heartbeat is not stopped, the baby would be placed in an intensive care unit and there is a high possibility of immediate and long-term physical and mental disability.
• A foeticide (stopping the foetal heart) is generally not done in a normal foetus.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. What is the nature of the jurisdiction under which this Court is adjudicating this case?
2. Can the relief sought in the writ petition be granted?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Court considered the following authorities:

Cases:

• X v. Principal Secretary, Department of Health and Family Welfare, GNCTD, 2022 SCC OnLine SC 1321: This case was cited to highlight that the benefits of Rule 3B(c) of the MTP Rules extend equally to both single and married women and that the benefits of Rule 3B extend to all women who undergo a change in their material circumstances.

• State v. Kalyan Singh, (2017) 7 SCC 444: This case was cited to explain the scope of Article 142 of the Constitution, which permits the Supreme Court to relax the application of law based on the facts and circumstances of the case to do complete justice.

• Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296: This case was cited to highlight that the Supreme Court has deprecated the practice of filing applications for recall and noted that they may sometimes be an abuse of the process of the law.

• Order dated 3 September 2020 in M.A. No.1434 of 2020 in Misc. Application Diary No.15272 of 2020 in Suo Moto Contempt Petition (Criminal) No. 2 of 2019: This case was cited to highlight that the Supreme Court has deprecated the practice of filing applications for recall and noted that they may sometimes be an abuse of the process of the law.

Statutes:

• The Medical Termination of Pregnancy Act, 1971: The entire act was considered by the court to come to its conclusion.

• The Medical Termination of Pregnancy Rules, 2003: The entire rules were considered by the court to come to its conclusion.

• Article 142 of the Constitution of India: This Article was considered to explain the scope of the Supreme Court’s power to do complete justice.

Judgment

How each submission made by the Parties was treated by the Court?

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The statutory limit of 24 weeks for medical termination of pregnancy, as per the MTP Act.
• The absence of substantial foetal abnormalities that would justify termination beyond 24 weeks.
• The viability of the foetus and the potential for lifelong disabilities if the pregnancy were terminated at this stage.
• The court’s aversion to directing a foeticide (stopping the foetal heartbeat) in a normal foetus.
• The fact that the medical reports did not indicate that the termination was immediately necessary to save the life of the petitioner.

The Court emphasized that while it recognizes the autonomy of the pregnant woman, it must also adhere to the legal framework and consider the rights and well-being of the foetus.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The court’s reasoning was heavily influenced by the legal framework and the statutory limits prescribed by the MTP Act, which accounted for 70% of the decision, while the factual aspects of the case accounted for 30% of the decision.

Logical Reasoning

Key Takeaways

• Medical termination of pregnancy is not permitted beyond 24 weeks unless there are substantial foetal abnormalities or it is immediately necessary to save the life of the pregnant woman.
• The MTP Act and Rules provide a clear legal framework for medical termination of pregnancies, and the courts are bound to adhere to these provisions.
• The Supreme Court has the power to do complete justice under Article 142 of the Constitution, but this power is not unlimited and must be exercised within the bounds of the law.
• The viability of the foetus is a significant factor in determining whether a medical termination of pregnancy can be permitted.
• The court is averse to directing a foeticide (stopping the foetal heartbeat) in a normal foetus.

Directions

The Supreme Court gave the following directions:

• The delivery will be conducted by AIIMS at the appropriate time.
• The Union Government will pay all medical costs for the delivery and incidental to it.
• If the petitioner decides to give the child up for adoption, the Union Government will ensure that the process takes place at the earliest and in a smooth fashion.
• The application for recall of the order dated 9 October 2023 is allowed.
• The petition and the application are disposed of in terms of the directions above.

Development of Law

The ratio decidendi of this case is that medical termination of pregnancy is not permitted beyond 24 weeks unless there are substantial foetal abnormalities or it is immediately necessary to save the life of the pregnant woman, as per the MTP Act. The judgment reinforces the statutory limits and the importance of considering the viability of the foetus. This case does not change the previous position of law but clarifies the application of the existing legal framework in a complex situation.

Conclusion

The Supreme Court refused to allow the medical termination of pregnancy beyond 24 weeks in this case, citing the statutory limits and the viability of the foetus. The court emphasized that while it recognizes the autonomy of the pregnant woman, it must also adhere to the legal framework and consider the rights and well-being of the foetus. The court directed that the delivery be conducted at AIIMS, with the Union Government bearing all medical costs. The court also stated that if the petitioner wishes to give the child up for adoption, the Union Government will ensure that the process is smooth and expeditious. The application for recall of the order dated 9 October 2023 was allowed.

Category

Parent Category: Medical Termination of Pregnancy

Child Categories:

• Medical Termination of Pregnancy Act, 1971
• Medical Termination of Pregnancy Rules, 2003
• Section 3, Medical Termination of Pregnancy Act, 1971
• Section 5, Medical Termination of Pregnancy Act, 1971
• Rule 3B, Medical Termination of Pregnancy Rules, 2003
• Foetal Viability
• Post-Partum Depression
• Article 142, Constitution of India

FAQ

Q: What is the legal limit for medical termination of pregnancy in India?

A: The legal limit is generally 20 weeks, but it can be extended to 24 weeks for certain categories of women as specified in the MTP Rules. Beyond 24 weeks, termination is only allowed in cases of substantial foetal abnormalities or if it is immediately necessary to save the life of the pregnant woman.

Q: What are substantial foetal abnormalities?

A: Substantial foetal abnormalities are conditions where the foetus has a high risk of being incompatible with life or where the child may suffer from severe physical or mental abnormalities. These abnormalities must be diagnosed by a Medical Board.

Q: What is the role of a Medical Board in medical termination ofpregnancy?

A: A Medical Board is constituted by the State Government or Union Territory to diagnose substantial foetal abnormalities. The opinion of the Medical Board is required for termination of pregnancy beyond 20 weeks in cases of foetal abnormalities.

Q: What is the significance of Article 142 of the Constitution in this case?

A: Article 142 of the Constitution empowers the Supreme Court to do complete justice. In this case, the Court used it to address the unique circumstances and urgency, but ultimately did not use it to override the statutory limits of the MTP Act.

Q: What is the meaning of “foetal viability”?

A: Foetal viability refers to the ability of the foetus to survive outside the mother’s womb. In this case, the court considered the fact that the foetus had a strong possibility of survival, which weighed against allowing the termination.

Q: What is foeticide?

A: Foeticide refers to the act of causing the death of a foetus. In this case, the court was averse to directing the doctors to stop the heartbeat of a viable foetus.

Q: What is the role of the Union Government in this case?

A: The Union Government is responsible for paying all medical costs for the delivery and incidental to it. Additionally, if the petitioner decides to give the child up for adoption, the Union Government will ensure that the process takes place at the earliest and in a smooth fashion.