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Legally Explained: A rape survivor's SC plea to permit 20+ week abortion and similar cases in history

The Medical Termination of Pregnancy laws explained
The Medical Termination of Pregnancy laws explained

Solicitor General Ranjit Kumar today told a Supreme Court bench of justices JS Khehar and Arun Mishra that the government would constitute a medical board to examine a rape survivor tomorrow, who has challenged section 3(2)(b) of Medical Termination of Pregnancy (MTP) Act, 1971 that prohibits abortion after 20 weeks of pregnancy, even if there is a risk of death to the mother or foetus.

The anonymous petitioner, Ms X, who was raped and as a consequence of which is now in the 24th week of her pregnancy, has contended in her petition that the ceiling of 20 weeks stipulated in the Act is unreasonable, arbitrary, discriminatory and violative of the right to life and equality.

X’s foetus suffers from anencephaly, which means the absence of a major portion of the brain, skull, and scalp that occurs usually during the first month of pregenancy. The chance of survival of a baby born with the condition are practically nil.

However, because of the MTP Act, the petitioner legally has no option but to continue her pregnancy.

In her petition she was seeking a direction to the Centre to require hospitals to set up an expert panel of doctors to assess the pregnancy and offer medical termination of pregnancy, at least to survivors of sexual violence who have passed the 20 week limit.

Today the state government’s counsel agreed to an examination of X by the board of the local KEM Hospital in Mumbai, where she lives.

Justice Khehar told the solicitor general that “the case is not as simple as it seems, you have to assist us in law”, and posted it for hearing on Monday, 25 July.

The solicitor general asked what if the report was not ready by then, whether it could be heard on Tuesday, to which Khehar answered that he didn’t think so. “In a matter like this, it is not advisable to delay. I am sure the report will be ready by Monday, if the medical board examines her tomorrow,” said Khehar.

Is the Centre likely to oppose petitioner’s plea?

The Centre is considering amendment to the MTP Act, and a draft Bill has been in the public domain since 2014, inviting comments from the public.

Therefore, the Centre may leave it to the Supreme Court to grant suitable relief in this case, as it cannot take a definite stand unless the draft bill becomes law.

What is the major change introduced by the draft Bill?

It raises the upper limit for abortion from 20 weeks to 24 weeks of pregnancy.

Why has the Government not introduced the Bill in Parliament?

The health ministry, according to reports, has advised more consultation with stake-holders, in view of concerns expressed by some of them over certain provisions of the draft bill.

Is it the first case of its kind in the Supreme Court?


In 2009, the Human Rights Law Network (HRLN) of senior counsel Colin Gonsalves, who is the current lawyer for Ms X, filed an appeal petition in the Supreme Court on behalf of Dr. Nikhil D Datar, a gynaecologist from Mumbai.

Datar had lost a similar case in Bombay high court, when her patient, Niketa Mehta, wanted to terminate her pregnancy after 20 weeks, after discovering that her foetus had a life-threatening condition.

That case (Civil Appeal 7702 of 2014) was last heard on 5 August 2014 by the bench of justices Ranjan Gogoi and MY Eqbal.

Although the next hearing in this case was fixed for 3 December 2014, it was never heard after that.

What were Datar’s pleas in that appeal?

Like petitioner X, Datar had argued that the MTP Act violated women’s rights to health, life, dignity, and equality.

Are there any other similar petitions?

In 2014, HRLN had also filed another similar petition, Mrs X and Mrs Y v UOI and another (writ petition (civil) 308 of 2014), which was clubbed with Datar’s petition.

What were the 2014 facts regarding Mrs X?

Mrs X was 26 weeks pregnant. She was told that her foetus had severe abnormalities, and would not survive more than a few hours after delivery.

Forced to continue pregnancy, she delivered a baby that ultimately died within three hours of delivery.

What were the facts regarding Mrs Y?

In the 19th week of her pregnancy, doctors told her that her foetus may have had a congenital condition characterised by partial absence of brain tissue.

In her case, additional test results would not be available until after the 20th week of pregnancy.

In view of the MTP Act’s ban on abortion after 20th week, she was forced to make the excruciating decision to terminate her pregnancy before the 20th week without a full understanding of the medical facts.

Since Mrs X and Mrs Y could not get timely relief, what is the remaining prayer in their petitions?

HRLN wants compensation to be paid to both Mrs X and Mrs Y, in view of the failure to redress their grievance in time.

Who have been demanding amendments to the MTP Act?

Activists, the National Commission for Women, Federation of Obsteric and the Gynecological Societies of India (FOGSI), and prominent doctors have advocated for amendments to the MTP Act that would ensure protection of women’s mental and physical health throughout their pregnancies.

What amendment does HRLN want in the MTP Act?

Extending the upper time limit on abortion to 24 or 26 weeks and excluding time limits all together where doctors have detected substantial foetal abnormalities.

What is the larger picture?

According to HRLN, out of the 26 million births that occur in India every year, approximately 2 to 3 per cent of the foetuses have a severe congenital or chromosomal abnormality.

With new technology, many life threatening abnormalities can be detected only after 20 weeks.

What is the position in other countries?

Many countries with legal abortion allow termination post 20 weeks in the case of severe fetal abnormalities or to protect the mental or physical health of the pregnant woman.

Is there a legal precedent in which the courts have intervened to permit abortion after 20 weeks?


The high court of Chhattisgarh, according to HRLN, had allowed medical termination of pregnancy fter the 20 week period in one case. It was unwanted by the woman, after a panel of doctors examined the feasibility of the termination of pregnancy.

The judge made an important observation in this case: “The court’s decision should be guided by the interests of the victim alone and not those of stakeholders such as guardians or society in general.”

What does Section 3 (2) (b) of MTP Act say?

Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than two registered medical practitioners are of opinion, formed in good faith that :

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant women 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 such physical or mental abnormalities as to be seriously handicapped.

Explanation 1: Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2: Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

What does section 4 say?

No pregnancy of a woman, who has not attained the age of 18 years or, who, having attained the age of 18 years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

In all other cases, pregnancy can be terminated only with the consent of the pregnant woman.

Is there any instance of a pregnant woman wanting to continue her pregnancy, but Section 4 of the MTP Act coming in the way continuing it beyond 20 weeks?

Yes. In 2009, the Punjab and Haryana high court refused to allow a female survivor of rape to carry her pregnancy beyond the 20 week period in view of her intellectual disability and the perceived risks involved in continuing the pregnancy.

It was said that she was incapable of deciding for herself.

The high court’s judgment was appealed against in the Supreme Court.

In Suchitra Srivastava v Chandigarh Administration, the petitioner was an advocate who represented the pregnant lady.

The Chandigarh administration, which ran the welfare home where she resided, opposed the continuance of pregnancy.

The Supreme Court held in that case that the mother’s reproductive choice should be respected despite other factors such as her lack of understanding of the sexual act, the apprehensions about her capacity to carry the pregnancy to its full term and her ability to assume maternal responsibilities thereafter.

The court interpreted section 3 of the MTP Act to mean that even a woman who has an intellectual disability or is “mentally retarded” should give her consent for the termination of a pregnancy.

The court agreed with the view that someone who is “mentally retarded” is not a lunatic, and is capable of giving her consent.

In this case, as the rape survivor expressed her willingness to continue the pregnancy, she was allowed to.

Both the mother and the child proved the sceptics wrong, with the child growing up seemingly normally.

What is the justification for amending the MTP Act?

Proponents of the amendment say that the 20-week ceiling may have been appropriate when the section was enacted in 1971, but has ceased to be reasonable today with medical advancement making it safe for women to abort even until the 28th week and later.

So, how may the Supreme Court decide the current Ms X case before it?

The Supreme Court may allow termination of pregnancy in the case of Ms X, if medical opinion suggests that her foetus has poor likelihood of survival in view of its abnormalities.

Although it may be a violation of the MTP Act, the court could use its power under Article 142, to render complete justice in a case.

Picture by https://en.wikipedia.org/wiki/Pregnancy Wikipedia

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