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How 2 days could have been saved in the SC abortion challenge, if a case had been mentioned earlier

What could have been a complicated case before the Supreme Court, turned out to be a much simpler affair, with the bench comprising of justices JS Khehar and Arun Mishra reading out the report submitted by the Medical Board of seven doctors who examined the rape survivor, who is in her 24th week of pregnancy.

The survivor had challenged the validity of Section 3(2)(b) of the Medical Termination of Pregnancy Act (MTPA), which bars abortion after 20th week.

The Medical Board’s opinion was that the foetus suffers from abnormalities, and it could endanger the life of the mother, if she continued pregnancy sealed the decision of the bench immediately. The medical board which examined her on 23 July, submitted its opinion in a sealed cover to the bench.

The bench, after reading it first, then read aloud certain excerpts for the benefit of he counsel, who also seemed to be aware of its findings.

Earlier, the Attorney General, Mukul Rohatgi, read both Section 3(2)(b) and Section 5 of the MTPA Section 5 carves out an exception to Section 3(2)(b), if the doctor opines that mother’s life may be threatened if the pregnancy continued beyond 20 weeks.

Therefore, Rohatgi told the bench, that her case would attract Section 5.

When senior counsel Colin Gonsalves, appealing for the petitioner, pointed out that she had challenged the validity of Section 3(2)(b), the bench said it does not survive, in view of her claiming the benefit of Section 5, and that the larger issue could be agitated in the other pending petitions before the court.

What does Section 5(1) of MTPA say, which the bench was not told by the counsel on 22 July?

Section 5 (1) of the Act, says sections 3 and 4 shall not apply in one case:

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.

What could the bench have done, had it been told of Section 5 and a previous decision of the court in a similar case in 2015, on 22 July?

In a previous decision in a case with similar facts, justices Anil Dave and Kurian Joseph had held that if the Medical Board was of the view that abortion after the 20th week of pregnancy was necessary to save the life of the mother, then the abortion could be carried out on the mother, without her coming back to the court for the purpose of seeking permission (Chandrakant Jayantilal Suthar v State of Gujarat, 28 July, 2015).

Had this case been cited on 22 July before the bench of justices Khehar and Arun Mishra, it could have held so on 22 July itself, and the delay of two days, after the medical examination on 23 July, in aborting the foetus could have been avoided.

What else did the medical board say?

The medical board further said that the risk involved in carrying out abortion on the pregnant mother was within acceptable limits.

On the other hand, the risk in continuing pregnancy was now likely to result in greater harm to the mother.

What did the bench and the AG say?

The bench said life is generally formed between 22nd and 24th week, and therefore, abortion after the life is formed involves ethical questions.

The AG agreed saying once the life is formed, it becomes the State’s responsibility to protect the foetus, in view of the doctrine of /parens patriae/. However, the AG added, in view of Section 5’s application in this case, the question does not

Read the SC order.

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