J&K High Court says doctors hesitant to perform abortions without court order, aggrieved mothers left at God's mercy

The Jammu & Kashmir and Ladakh High Court recently observed that doctors refuse to perform abortions even in cases where the procedure is legally permitted under the Medical Termination of Pregnancy (MTP) Act.

Justice Mohd Yousuf Wani made the comment while dealing with a case of a woman who, despite serious foetal abnormalities, had to approach the Court for medical termination of pregnancy after doctors refused to perform abortion without judicial order.

The Court emphasised that medical practitioners should not unnecessarily avoid attending emergent cases for which statutory directions under the MTP Act and relevant rules are clear.

"The registered medical practitioners especially doctors working in the associated hospitals of medical colleges and in other district hospitals do not shoulder their statutory responsibilities in terms of the provisions of Medical Termination of Pregnancy Act, 1971 and the rules of 2003 framed thereunder in justified cases thereby leaving the aggrieved mothers at the mercy of the God who, in search of some solace feel constrained to shoulder further mental agony and burden of approaching the courts of law for legal directions," the Court said.

Under the MTP Act, termination of pregnancy is permitted up to 24 weeks subject to prescribed conditions, while terminations beyond 24 weeks are highly restricted.

The Court further said that clause 2-B of Section 3 and clause 1 of Section 5 of the MTP Act clearly reveal that the provisions relating to length of pregnancy do not apply to termination of pregnancy in cases with substantial foetal abnormalities or where abortion is necessary to save the life of the pregnant women.

The order was passed on a petition moved by a couple for directions to constitute a medical board for termination of pregnancy in view of detection of serious abnormalities in the foetus at the gestational age of 31 weeks.

On September 29, the doctors told the couple that due to the advanced stage of the foetus, the termination cannot be undertaken without the intervention of the High Court.

The couple then moved the Court seeking consideration under the statutory framework governing termination beyond the ordinary gestational limit in cases of substantial foetal abnormalities.

In the order passed on October 6, the Court directed the Superintendent of Lalla Ded Hospital of Srinagar to constitute a competent medical board, for an urgent decision on the medical termination of pregnancy.

Advocates Asif Wani and Owais Qadri represented the petitioners.

Senior Additional Advocate General Mohsin Qadri with advocate Maha Majid represented the State.

[Read Order]