Unclear abortion law on mother’s mental health has High Court in a fix

Context:

 A woman’s plea in the Bombay High Court seeking to terminate her 28-week-old pregnancy because the foetus has grave medical abnormalities has the court in a quandary: in the Medical Termination of Pregnancy Act, section 5 allows medical termination of pregnancy after the permissible 20-week period if the pregnancy and childbirth pose threats to the woman’s physical health or life. However. the law doesn’t deal with the woman’s mental health, and has no provision to deal with foetal abnormalities either.

Is her life in danger: HC

  • After going through the report, the Bench wanted to know how the condition of the foetus poses a threat to the woman’s life.
  • Though the Union Ministry of Health and Family Welfare has proposed amendments to the Act in 2014, including introducing the concept of risks to the woman’s mental health and the idea of substantial foetal abnormalities, the draft Bill with the amendments is yet to be ratified by Parliament.
  • The Bench said, “You prove to us that the threats to the mental well-being of the petitioner is covered under section 5 of the MTP Act.
  • Only then can we allow the plea. Sadly, while the proposed Bill provides for the above concept, it is yet to become a law.”
  • “The court wants us to show how this case falls under section 5 of the MTP Act, which says an abortion is allowed after 20 weeks of pregnancy only if there is a risk to the woman’s life.
  • The court has asked for orders by either the HC or the Supreme Court that explicitly say the pregnancy was allowed to be terminated because there was a threat to the mother’s life.

SC Order:

  • The apex court has allowed medical termination of pregnancy even in the 31st week. “This is a rare case where the HC doesn’t want to accept whatever the SC has ruled in similar cases.
  • In one instance, the SC had not allowed an abortion on similar grounds.
  • The child was born with severe abnormalities, and died after two months.”

Conclusion:

The existing Act was framed in 1971. How can the threat be quantified and qualified as an immediate risk to the woman’s life? This is why the law needs to be amended at the earliest. If the draft Bill with amendments had been ratified, this situation wouldn’t have arisen. Till the law is amended, we have around 30 SC and HC judgements, in which termination of pregnancy has been allowed by considering Article 21 (Right to Life) of the Constitution of India.”

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