SC Questions Absence Of Provision For Termination Of Pregnancy In Cases Of Rape, Incest

The Supreme Court of India recently questioned as to why termination of pregnancy was not allowed beyond 24 weeks in cases of rape and incest but was allowed in case of abnormalities in the foetus.

In the instant case, a minor sexual assault victim had approached the Court seeking medical termination of her pregnancy. Before approaching the Apex Court, the Bombay High Court had refused to allow the plea for medical termination of pregnancy as there were no foetal abnormalities, without taking into account the mental health of the minor victim.

Bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra said that Section 3(1) of the MTP Act protects the registered medical practitioner from penal provisions against abortion, under the Indian Penal Code,8 if it is carried out as per the MTP Act. Moreover, no penalty may be attracted to a RMP merely for forming an opinion, in good faith, on whether a pregnancy may be terminated.

“This is because the MTP Act requires and empowers the RMP to form such an opinion. Its bona fide assured, no aspersions may be cast on the RMP. The same applies to medical boards constituted under Section 3(2-C) and Section 3(2-D) of the MTP Act,” the Court observed.

The Court said that when a person approaches the court for permission to terminate a pregnancy, the courts apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In doing so the court relies on the opinion of the medical board constituted under the MTP Act for their medical expertise. 

The Court went on to state that, “The court would thereafter apply their judicial mind to the opinion of the medical board. Therefore, the medical board cannot merely state that the grounds under Section 3(2-B) of the MTP Act are not met. The exercise of the jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a medical board must examine the pregnant person and opine on the aspect of the risk to their physical and mental health.”

The Court said that there had to be primacy of the pregnant person's consent in abortion.

The Court concluded the following: -

(i) The MTP Act protects the RMP and the medical boards when they form an opinion in good faith as to the termination of pregnancy; 

(ii) The medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) of the MTP Act but must also evaluate the physical and emotional well being of the pregnant person in terms of the judgment; 

(iii) When issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances; and 

(iv)The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion.