Provisions of Medical Termination of Pregnancy Act 1971 inadequate to protect fundamental rights of pregnant women: Kerala High Court

The Kerala High Court recently flagged concerns regarding the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971 while dismissing a plea by a pregnant woman seeking termination of a 31-week old pregnancy (Indulekha Sreejith v. Union of India)..Justice PB Suresh Kumar, declined to pass orders allowing termination of pregnancy since the Medical Board had recommended against itThe Court, while doing so, noted that even though the MTP Act prescribes a time limit to medically terminate a pregnancy, there appears to be a trend of Constitutional Courts allowing it outside of the deadline. This, the Court opined, might be due to inadequacies in the MTP Act as it stands now."The trend of the decisions rendered by the courts in this regard would indicate the inadequacy of the provisions in the Act to protect the fundamental right to life of the pregnant woman to its fullest extent, especially having regard to the advancement of medical technology for safe abortion," the order said.During the hearing of the case, the Court had orally observed that recently the Bombay High Court had allowed termination of a 33-week old pregnancy."Despite the provisions in the Act as regards the outer time limit within which a pregnancy could be terminated medically, having regard to the fundamental rights of the citizens, the constitutional courts in the country have been permitting termination of pregnancies medically if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health or there is a substantial risk that the child, if born, would suffer from serious physical or mental abnormalities as to be seriously handicapped," the order noted..The Court pointed out in its order that the MTP Act was amended in 2021 to raise the outer time limit for termination of pregnancy from 20 to 24 weeks. Termination after that period has to be with the approval of a medical board that finds serious foetal abnormalities. Moreover, the Amended Act is yet to be notified, the Court said..In the instant case, the petitioner approached the Court, through advocate PT Mohankumar, seeking termination of her 31-week old pregnancy.According to the petitioner, although substantial foetal abnormalities were diagnosed, she had been refused termination, as the outer time limit prescribed for termination of pregnancy under the MTP Act was over..On August, 17, the Court had directed the concerned authorities to constitute a medical board and submit a report to the Court. The report stated that the abnormalities were not lethal and termination of pregnancy might result in a live baby. The Medical Board, therefore, opined against termination of the pregnancy. .After examining the report, the Court highlighted the importance of balancing the rights of the unborn child and the rights of the mother under Article 21 of the Constitution. "In all cases where a court is called upon to adjudicate the question whether permission shall be granted to a pregnant woman for terminating her pregnancy on a plea of infringement of her fundamental right to life guaranteed under Article 21 of the Constitution, the court is making a balance between the rights of the mother and the rights of the unborn. No doubt, while doing so, if there is any threat to the life of the mother, the scales shall certainly tilt in favour of the mother, for if the life of the mother cannot be saved, the life of the unborn cannot be protected," the Court stated..Therefore, the question for consideration before the Court was whether it can permit termination in a case where the Medical Board does not recommend the same. The Court found that it must answer in the negative. .The Court went on to add that even if the 2021 amendments to the MTP Act were notified, it would still have to dismiss the petition."True, if the Medical Board diagnoses substantial foetal abnormalities, the amended provisions of the Act permit termination of pregnancy notwithstanding the outer time-limit prescribed in the Act for termination of pregnancy. According to me, even if the amended provisions were notified, the relief sought by the petitioner in the instant case cannot be granted at this stage of her pregnancy, for the Medical Board has not opined that foetal abnormalities found are substantial in nature," the Court said dismissing the plea..[Read Order]