Reduced intervention of Court in Medical Termination of Pregnancy by MTP (Amendment) Act, 2021

Reduced intervention of Court in Medical Termination of Pregnancy by MTP (Amendment) Act, 2021

Back in 2009, a full bench judgment of the Supreme Court of India held that a woman’s right to make reproductive choices is a dimension of personal liberty as understood under Article 21 of the Constitution of India. Reproductive choices include entitlement to carry a pregnancy to its full term or to terminate it midway. However, in case of pregnant women, the Court felt there is a ‘compelling state interest’ in protecting the life of a prospective child and therefore held that an abortion has to be in consonance with the Medical Termination of Pregnancy Act, 1971 (MTP Act). The MTPA permitted termination of pregnancy within 12 weeks and within 20 weeks, subject to the satisfaction of single and two registered medical practitioners respectively. The termination of pregnancy beyond 20 weeks required permission from courts.

The MTP (Amendment) Act, 2021 came into force on 25th March, 2021 and has introduced substantial changes, eliminating the requirement of permission from courts. The amending Act states that a single medical practitioner can form an opinion, in good faith, about termination of pregnancy, when the length of pregnancy is up to 20 weeks and a team of two doctors are authorised to form an opinion about termination when the length of pregnancy is between 20 weeks and 24 weeks.

In terms of the amending Act, doctors, before terminating the pregnancy, have to satisfy themselves that (i) continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to physical or mental health and (ii) there is a substantial risk that if the child were born, it would suffer any serious physical and mental abnormality. The unamended Act only extended the benefit of (i) only to married women and their husbands; however, the amendment extends this benefit to any woman and her partner, for the purpose of limiting the number of children or preventing pregnancy.
Under the unamended Act, for women requiring termination of pregnancy beyond the period of twenty weeks, permission was to be sought from Court and the Courts have granted permissions for termination of pregnancy even where the age of foetus was 27 weeks. In all such cases, the Courts had constituted medical boards and has either granted or declined permission, in accordance with their opinion. The legislature, by way of amendment, has incorporated this practice of constituting medical boards by introducing sub-section 2B to Section 3 of MTPA, which mandates that the restriction of 24 weeks shall not be applicable to terminations by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities, by a medical board.

It thus appears that under the new regime, the permission of the court is not necessary to terminate the pregnancy. A single doctor, in good faith can form an opinion about termination of pregnancy when the length of pregnancy does not exceed 20 weeks and two doctors can do the same where the length of pregnancy does not exceed 24 weeks. A Medical Board can decide the termination of pregnancy beyond the period of 24 weeks where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities, by a Medical Board. The newly inserted sub-section 2C to Section 3 of MTPA, mandates that every state government/union territory shall constitute a medical board to form an opinion in this regard which will comprise of (a) a Gynaecologist; (b) a Paediatrician: (c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.

The Delhi High Court in Mahima Yadav v. GNCTD considered the amendments to the MTPA and permitted medical termination of foetus of more than 24 weeks. Under the amended Act, after the constitution of permanent medical board envisaged in section 3(2C) of MTPA, it will no longer be necessary to approach the court seeking permission to terminate pregnancy, which will save time, health and lives of pregnant women.

Anupam Srivastava
anupam@tcl-india.net
Twitter handle: @AdvocateAnupamS