Constitutionality of the 20 week limit in MTP Act
The Indian law of Abortion is governed by the Medical Termination of Pregnancy Act 1971 (MTP Act or the Act). The Act allows abortion on the grounds mentioned in Section 3 of the Act. This section permits abortion only until the 20th week of pregnancy. Beyond the said limit abortion is permissible only when termination of pregnancy is immediately necessary to save the life of the pregnant woman.(Section 5 MTP Act)
Section 3 reads as follows:
"When Pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in
force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,
or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are.
Of opinion, formed in good faith, that,-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or
(ii) 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.
Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant
woman.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman."
My focus is on Section 3(2)(ii) and Section 5. According to this provision, termination of pregnancy on foetal abnormality is permitted only until the 20th week. Thereafter, even if the foetus is detected with a foetal abnormality termination of pregancy will not be legal unless it is neccessary to save the woman's life.
A case which came up on this issue in 2008 was the Niketa Mehta Case before Bombay High Court. The petitioner challenged the constitutionality of this provision which allows abortion only until the 20th week. This case however never looked into the question of constitutionality as the Court found the necessary ground permitting abortion to be absent at the first place i.e. there was no substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
If however this question was discussed then what would the arguments of the Petitioner and State be?
In my next post - I will first present the possible arguments that the Petitioner can make, i.e. that the said section is unconstitutional.
Section 3 reads as follows:
"When Pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in
force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,
or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are.
Of opinion, formed in good faith, that,-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or
(ii) 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.
Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant
woman.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman."
My focus is on Section 3(2)(ii) and Section 5. According to this provision, termination of pregnancy on foetal abnormality is permitted only until the 20th week. Thereafter, even if the foetus is detected with a foetal abnormality termination of pregancy will not be legal unless it is neccessary to save the woman's life.
A case which came up on this issue in 2008 was the Niketa Mehta Case before Bombay High Court. The petitioner challenged the constitutionality of this provision which allows abortion only until the 20th week. This case however never looked into the question of constitutionality as the Court found the necessary ground permitting abortion to be absent at the first place i.e. there was no substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
If however this question was discussed then what would the arguments of the Petitioner and State be?
In my next post - I will first present the possible arguments that the Petitioner can make, i.e. that the said section is unconstitutional.
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