Bombay high court
MUMBAI: A 39-year-old married woman will have to continue her first pregnancy which has exceeded 23 weeks as Bombay high court on Tuesday said their “financial condition’’ or her mental preparedness to be mother at “advanced age’’ were not reason enough to permit termination as sought by her.
The pregnancy occurred from a failure of contraception said the woman who would be a mother for the first time, at age 39.
She sought permission for the termination as apart from poor financial condition, she is “not mentally prepared’’ and would suffer “physical and mental agony over the unwanted pregnancy’’.
A bench of Justices Ujjal Bhuyan and Riyaz Chagla held that the agony over unwanted-pregnancy argument would not be applicable since it is her first pregnancy. “The anguish caused by such unwanted pregnancy which would be presumed to constitute a grave injury to the mental health of the pregnant woman is non-existent in the facts of the present case.”
“The anguish caused by such unwanted pregnancy—due to contraceptive failure– may be presumed to constitute a grave injury to the mental health of the pregnant woman,’’ her counsel Yashasvita Apte and Harshad Bhadbade had argued, pointing to a provision under the Medical Termination of Pregnancy (MTP) Act.
The state lawyer, M P Thakur, opposing her plea said there were “no legal grounds’’ made out to allow termination of pregnancy. Citing an earlier HC ruling on the law, State said such permission to abort over such mental agony in an unwanted pregnancy after a failed contraception would apply only to married women who already has a child, and is obliged to care for the family with limited financial resources, and where such care may be compromises by birth of another baby. The HC agreed.
As of now section 3 of the MTP Act, 1971, bars termination of pregnancy beyond 20 weeks. For any such termination beyond 20 weeks, the woman has to first seek the high court nod as set out in a landmark ruling last April. The woman “can seek termination of such pregnancy on the ground that its continuance would involve grave injury to her physical or mental health or where there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.’’ Such decision would necessarily be subject to recommendations of a medical board, said the HC.
The Judges did appoint a medical board on June 19, for its expert advice. The board had not recommended termination since 20 weeks were over and there was “no valid indication…”
The Judgment authored by Justice Chagla said, “The allowing of MTP would be, provided the medical board report revealed that the mother would suffer mentally if pregnancy continued’’ or there were such fetal anomalies as to endanger life of child during or soon after birth. In this case, it noted the medical board had not recommended an MTP.
The autonomy of a woman to exercise her reproductive choice and terminate her pregnancy as held by the apex court, would be applicable “within the statutory limit provided under Section 3 of the Act.’’
The woman pointed to a Bill that proposes to extend the bar to 24 weeks. The HC said the Bill has yet to become a law.
The Judgment dismissing her petition was pronounced via a virtual court proceeding. The woman, who is not from Mumbai, said she learnt of her pregnancy on May 14 for the first time after a sonography was done. She claimed it revealed she was past 20 weeks in to it, but the medical board said the USG said it was 18 weeks, 3 days.
She explained her delay in applying to terminate pregnancy citing the Covid-19 pandemic situation and lockdown. When she did apply the doctor showed her the legal bar and declined as she had exceeded 20 weeks, she said.
Her submission also included that “women would ideally prefer to prevent an unwanted pregnancy, and by forcing a woman to do continue with the pregnancy represents a violation of the rights of the woman’s bodily integrity,–a woman’s right to make reproductive choices and aggravates her mental trauma which would be deleterious to her mental health.’’
The Supreme Court has also held that MTP is permissible if it is necessary to save life of the pregnant woman or prevent her grave injury, even beyond 20 weeks’.
Dismissing her petition, the HC sai, “We are of the considered view that the reasons for medical termination of pregnancy beyond the statutory limit of 20 weeks that the Petitioner and her family are in no condition financially and that the Petitioner would be of an advanced age of 39 years to be mentally prepared to be a mother are not valid grounds for termination of pregnancy under the Act.’’