Interests of pregnant woman are on a higher pedestal than unborn child: Bombay High Court

Mumbai: Taking note of the rising cases of pregnant women seeking permission to abort their foetus, the Bombay High Court held that the interests of a pregnant woman are on a higher pedestal than an unborn child. The HC also said if a pregnant woman is disallowed to abort her foetus, merely because it is beyond 20-weeks, then it would infringe her fundamental right to live and privacy.

A bench of Justices Abhay Oka and Mahesh Sonak also ruled that henceforth in such cases, if abortion is necessary to save the life of the pregnant woman, then the medical practitioner must go ahead with the abortion and not wait for a court’s order.

“The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity,” the judges observed in their order. “The scheme of the Medical Termination of Pregnancy (MTP) act, even otherwise, places the interests of a mother on a higher pedestal than the interests of a prospective child,” the judges added.

The bench further said in a situation where the continuance of pregnancy poses grave injury to the physical or mental health of the mother or in a situation where there is substantial risk that if the child were born, would suffer from deformities and diseases,

the pregnant mother is forced to continue with her pregnancy merely because the pregnancy has extended beyond the ceiling of 20 weeks, “then there would arise a serious affront to the fundamental right of such mother to privacy, to exercise a reproductive choices, to bodily integrity, to her dignity,” the judges observed. The judges accordingly granted a relief to pregnant women by interpreting the provisions of the MTP law.

“We make it clear that a registered medical practitioner, in a case where he is of opinion that termination of such pregnancy is immediately necessary to save the life of the pregnant woman, can medically terminate such pregnancy which may have exceeded 20 weeks, even without the permission from the court,” the bench ruled. This is in a situation where the pregnant woman might actually die if the pregnancy is not immediately terminated.

However, we also make it extremely clear that in cases where pregnancy had exceeded 20 weeks and where the pregnant woman will not die if the pregnancy is not immediately terminated, but she seeks to terminate pregnancy on the ground that its continuance would involve grave risk to her physical or mental health or where there is substantial risk that if the child were born, it would suffer from physical or mental abnormalities as to be seriously handicapped, then, there will be no liberty to the registered medical practitioner, on his own, to terminate such pregnancy,” the bench clarified.

The bench further noted that there has been a rise in such cases and accordingly directed the government to set up permanent medical boards, at least in one major city in each district across the state.  The bench was dealing with a large number of petitions filed by pregnant women seeking to abort their foetus on various grounds.

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