The Essence of Time in Medical Termination of Pregnancy Cases: Navigating Challenges and Legal Complexities

Introduction

In cases of medical termination of pregnancy, urgency is critical. Each day that passes with the pregnancy increases risks, especially for minor girls who are pregnant and women, who are victims of sexual assault, as well as leading to potential health complications for both the women and the unborn foetus. However, amidst overburdened court dockets and complex legal processes, obtaining a timely termination can become an extremely difficult, stressful and uncertain ordeal. This article explores the pressing need for a heightened focus on expediting medical termination of pregnancy cases and shedding light on the challenges faced by women and minor girls for whom termination is not simply an option, but a vital medical necessity and also an important matter for their lives.

Evolution of abortion law in India

Before the enactment of the Medical Termination of Pregnancy (MTP) Act, 1971¹ abortion laws in India fell under the Penal Code, 1860² (IPC). Sections 312 to 318 IPC³ criminalised causing a miscarriage. Currently, Sections 86 to 90 of the Nyaya Sanhita, 2023⁴ deal with the criminalisation of abortion. Section 86 of the Nyaya Sanhita provides that any person who voluntarily causes a woman to miscarry is liable to be punished. An Explanation to Section 86 includes a pregnant woman who chooses abortion. The only exception is if such miscarriage is caused in good faith to save the pregnant woman’s life. This criminalisation often forced women to resort to unsafe, unregulated abortion procedures leading to maternal morbidity and mortality rates.

In India, the termination of pregnancy is governed and regulated by the Medical Termination of Pregnancy Act, 1971. This Act provides the legal guidelines for terminating certain pregnancies by registered medical practitioners. The MTP Act was recently amended by the Medical Termination of Pregnancy (Amendment) Act, 2021⁵ (hereinafter referred to as the “2021 Amendment”), which came into effect on 24-9-2021. The MTP Act is considered a progressive legislation that regulates the manner in which pregnancies may be legally terminated.

Time and again, the Supreme Court has emphasised the importance of a woman’s right to make reproductive choices as a dimension of “personal liberty” under Article 21 of the Constitution of India⁶. In Suchita Srivastava v. Chandigarh Admn.⁷, the Court affirmed that a woman’s right to privacy, dignity, and bodily integrity should be respected, including her right to undergo termination of pregnancy if her mental or physical health is at stake. Similarly, in X v. State (NCT of Delhi)⁸, the Supreme Court stated in para 114, 114. A woman can become pregnant by choice irrespective of her marital status. In case the pregnancy is wanted, it is equally shared by both the partners. However, in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognises and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion.

In A (Mother of X) v. State of Maharashtra⁹, the Supreme Court held that consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion.

Gestational age, legal medical termination, conditions

Section 3 of the MTP Act, 1971¹⁰ provides certain conditions which must be satisfied before a pregnancy can be terminated. The conditions depend upon the length of the pregnancy, where the length of the pregnancy does not exceed twenty weeks, one registered medical practitioner must be of the opinion, formed in good faith, that:

(a) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health. The anguish caused by a pregnancy which occurs due to the failure of a contraceptive method is presumed to constitute a grave injury to the mental health of the woman; or

(b) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanations 1 and 2 of Section 3 provides that 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.
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 resumed to constitute a grave injury to the mental health of the pregnant woman.

Length of the pregnancy beyond 20 weeks and requirement of opinion of registered medical practitioner¹¹:

Where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks, two registered medical practitioners (RMPs) must be of the opinion discussed in the preceding paragraph. The categories of women where a pregnancy beyond 20 weeks and up to 24 weeks may be terminated are permitted to be prescribed by rules made by the delegate of the legislature. Rule 3-B of the Medical Termination of Pregnancy Rules, 2003¹² (MTP Rules) (as amended in 2021) provides grounds for the termination of a pregnancy up to twenty-four weeks. The termination may be allowed in the following cases or for the following persons:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities with a major disability in terms of the criteria laid down under the Rights of Persons with Disabilities Act, 2016¹³;

(e) mentally ill women including mental retardation;

(f) foetal malformation that has a substantial risk of being incompatible with life or where in the event of birth, the child may suffer from physical or mental abnormalities and be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

21. The position of law was summarised in X v. Union of India¹⁴ as followed by Supreme Court in the following words:

Length of the pregnancy	Requirements for termination
Up to twenty weeks	Opinion of one RMP in terms of Section 3(2).
Between twenty and twenty-four weeks	Opinion of two RMPs in terms of Section 3(2) read with Rule 3-B.
Beyond twenty-four weeks	If the termination is required to save the life of the pregnant woman, the opinion of one RMP in terms of Section 515.
	If there are substantial foetal abnormalities, with the approval of the Medical Board in terms of Section 3(2-B) read with Rule 3-A(a)(i).

Challenges in timely access to termination

Delays in legal proceedings for pregnancy termination at the High Court level can significantly impact victims, potentially pushing them beyond the statutory time-limits by the time their appeals reach the Supreme Court. A prominent case highlighting this issue is Suchita Srivastavacase¹⁶. This case involved a woman, referred to as “the victim”, who became pregnant as a result of alleged rape while residing in a Government-run welfare institution in Chandigarh. The Chandigarh Administration sought approval from the High Court for the termination of her pregnancy, citing her mental retardation and orphan status.

However, by the time the appeal reached the Supreme Court, the 20-week statutory limit for termination was fast approaching. In its deliberation, the Supreme Court made crucial distinctions between individuals with “mental retardation” and those who are “mentally ill”. It noted that while a guardian can make decisions on behalf of a “mentally ill person” under Section 3(4)(a) of the MTP Act, the same cannot be done for a person with “mental retardation”.

Emphasising the importance of recognising a woman’s right to make reproductive choices as part of “personal liberty” under Article 21 of the Constitution of India, the Supreme Court refrained from granting permission for termination in this case.

In XYZ v. State of Gujarat¹⁷, the petitioner sought termination of her pregnancy. However, when she approached the High Court, she was already 26 weeks pregnant. This resulted in a significant loss of time between 11-8-2023, when the medical report was submitted to the High Court, and 23-8-2023, when the Court decided to defer the matter.

Fear of prosecution amongst the registered medical practitioners

Fear of prosecution among registered medical practitioners acts as a barrier for pregnant individuals in accessing safe abortion, as highlighted in A (Mother of X) v. State of Maharashtra¹⁸, recalling the judgment passed in X v. State (NCT of Delhi)¹⁹ and stated that the fear of prosecution among RMPs acts as a barrier for pregnant people in accessing safe abortion. Further, since the MTP Act only allows abortion beyond twenty-four weeks if the foetus is diagnosed with substantial abnormalities, the Medical Board opines against termination of pregnancy merely by stating that the threshold under Section 3(2-B) of the MTP Act is not satisfied.

To address this issue the Supreme Court clarified in A (Mother of X) v. State of Maharashtra²⁰ in the following words:

22. Section 3(1) of the MTP Act protects the registered medical practitioner from penal provisions against abortion, under the Penal Code, 1860 if it is carried out as per the MTP Act. Moreover, no penalty may be attracted to a RMP merely for forming an opinion, in good faith, on whether a pregnancy may be terminated. This is because the MTP Act requires and empowers the RMP to form such an opinion. Its bona fide assured, no aspersions may be cast on the RMP. The same applies to Medical Boards constituted under Sections 3(2-C) and (2-D) of the MTP Act.

23. The opinion of the RMP or the Medical Board, as the case may be, is indispensable under the scheme of the MTP Act. This inadvertently gives the power to the RMP or the Medical Board to stand in the way of a pregnant person exercising their choice to terminate the pregnancy. When there is fear or apprehension in the mind of the RMP or the Medical Board it directly jeopardises the fundamental freedoms of pregnant persons guaranteed under the Constitution. However, the scheme of the MTP Act and the steady line of application of the law by the courts has made it clear that the RMP or the Medical Board cannot be prosecuted for any act done under the MTP Act in good faith.

The Supreme Court further stated that it is therefore imperative that the fundamental right of a pregnant person is not compromised for reasons other than to protect the physical and mental health of the pregnant person.

Improper reports and contradictory medical recommendation

Another challenge lies where the reports by the Board are not in proper manner. Lack of clarity and inconsistency in the reports create confusion and also leads to loss of time when time plays an important role in the medical termination of pregnancy cases.

One striking example is XYZ v. State of Gujarat²¹. It was held that “the Medical Board or the High Court cannot refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription”.

Further in A (Mother of X) v. State of Maharashtra²², the Medical Board of the Grant Government Medical College & Sir J.J. Group of Hospitals, Mumbai had prepared a report dated 28-3-2024 stating that the pregnancy may be terminated in view of the physical and mental health of “X”. The report however sought the permission of the High Court since the gestational age of the foetus was above twenty-four weeks, which is the permissible age for termination of pregnancy under the MTP Act. An opposite view was taken by the Medical Board in its “clarificatory” opinion dated 3-4-2024. The Medical Board issued a clarification without re-examining “X”. Moreover, the opinion did not elaborate on the change in circumstances which prompted the Board to issue a clarification on its earlier opinion. In this aspect the Supreme Court observed:

29. … Change in the opinion of the Medical Board may cause undue trauma and exertion to a pregnant person whose mental health is understandably under distress. While we understand the need for a Medical Board to issue a clarificatory opinion based on the facts and circumstances of each case, the Board must explain the reasons for the issuance of the clarification and, in particular, if their opinion has changed from the earlier report.²³

Failure of State authorities:

In Z v. State of Bihar²⁴, the Supreme Court found that the State authorities had failed in not terminating the pregnancy before the passage of twenty weeks which was permissible under the law. In a nutshell, a woman who was a rape survivor, abandoned by her husband and family, found herself pregnant while living on the streets of Patna. After being taken to a shelter home and subsequently to Patna Medical College Hospital, where she was diagnosed as 13 weeks pregnant, she expressed her desire for a termination. However, due to a series of administrative delays, it led to her pregnancy advancing to 20 weeks. When she approached the High Court, further delays ensued due to non-impleadment of husband and father and errors in serving notices on husband. The High Court, after going through the medical report, thought it fit to reject the woman’s plea to abort her foetus as the foetus was 23-24 weeks old and the termination of the same would be hazardous to the life of the woman. It is to be noted that the woman was also found to be HIV positive. The Supreme Court directed the State to pay compensation of Rs 10 lakhs. It also observed that there was no requirement to implead the husband and the father and held though the medical report was required but the delay was not required.

Legal unawareness

The case of X v. State of Maharashtra²⁵ is a striking example where High Court of Bombay directed the Department of Public Health and the Department of Medical to formulate a standard operating procedure (SOP). This SOP was directed to be issued to all government hospitals and medical colleges in the State of Maharashtra. The Court requested the learned Government Pleader to not only inform the relevant authorities about this directive but also to ensure the implementation of a practical SOP. The aim was to streamline the process for termination of pregnancy under the provisions of the MTP Act, 1971 and MTP Rules, 2003, eliminating the need for individuals to approach the Court for permission.

In this case, the Court noted that the petitioner’s pregnancy had exceeded twenty-four weeks. On 3-4-2024, the Court directed the Civil Surgeon to conduct a medical examination of the petitioner and submit a report. The Medical Board at the General Hospital in Wardha, consisting of nine doctors and one matron from various medical disciplines, conducted the examination and forwarded its report on 4-4-2024.

The report indicated that the petitioner was thirty-two weeks pregnant and continuation of the pregnancy would pose grave risks to her mental health and significant morbidity to the child if born. The Medical Board recommended termination due to foetal abnormalities detected via sonography.

The Court observed that, sub-section (2-B) of Section 3 carves out an exception to the provisions of sub-section (2), according to which, sub-section (2) of Section 3 will have no application to termination of pregnancy where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by the Medical Board. Accordingly, Section 3(2-B) permits termination of pregnancy exceeding twenty-four weeks provided in the opinion of the Medical Board it is diagnosed that the lady is carrying pregnancy having substantial foetal abnormalities.

Further, the Bombay High Court observed that instead of referring the matter to the Medical Board for opinion based on sonography, the District General Hospital advised the petitioner to approach the Court. This lack of awareness regarding legal procedures resulted in the petitioner being subjected to unnecessary legal battles.

Considering this Court decision, effective legal awareness and widespread dissemination of the SOP could save significant time and unnecessary stress on pregnant women seeking a termination. By clearly outlining the process and eligibility criteria as per the Acts, many women may be able to access legal abortion services through the streamlined system without enduring delays or lengthy legal proceedings. Proper implementation and public awareness of law could help curtail barriers and ease the process for those in need of this service.

Mandatory reporting under the POCSO Act and its impact on victims seeking termination of pregnancy

Section 19 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)²⁶ requires that any person, including a child, who has knowledge of the commission of an offence punishable under the POCSO Act, or an apprehension that such an offence may be committed, is mandatorily required to provide information to the Special Juvenile Police Unit or the local police. Section 19(2) of the POCSO Act stipulates that every such report under Section 19(1) shall be ascribed an entry number and recorded in writing, read over to the informant, and entered in a book to be kept by the police unit. Failure to report, as mandated by Section 19, is a punishable offence under Section 21 of the POCSO Act²⁷.

While mandatory reporting serves the important purpose of bringing offences to light and protecting victims, its implementation can inadvertently deter victims from seeking help. This mandatory reporting creates significant challenges for victims seeking help from registered medical practitioners. Fear of legal repercussions, especially in cases of consensual relationships involving adolescents, may deter girls from seeking assistance from professionals obligated to report. This fear may lead victims to avoid seeking proper medical care, thereby risking their health and well-being. It is to be mentioned here that unsafe abortion remains the third leading cause of maternal mortality in India. Close to 8 women die each day due to causes related to unsafe abortion.²⁸

The Supreme Court has time and again considered this aspect i.e. importance of reporting of offences, particularly by doctors and the seriousness attached to such reporting. A three-Judge Bench of the Supreme Court in X v. State (NCT of Delhi)²⁹ has held as follows:

85. When a minor approaches an RMP for a medical termination of pregnancy arising out of a consensual sexual activity, an RMP is obliged under Section 19(1) of the POCSO Act to provide information pertaining to the offence committed, to the authorities concerned. An adolescent and her guardian may be wary of the mandatory reporting requirement as they may not want to entangle themselves with the legal process. Minors and their guardians are likely faced with two options  one, approach an RMP and possibly be involved in criminal proceedings under the POCSO Act, or two, approach an unqualified doctor for a medical termination of the pregnancy. If there is an insistence on the disclosure of the name of the minor in the report under Section 19(1) of the POCSO Act, minors may be less likely to seek out RMPs for safe termination of their pregnancies under the MTP Act.

86. To ensure that the benefit of Rule 3-B(b) is extended to all women under 18 years of age who engage in consensual sexual activity, it is necessary to harmoniously read both the POCSO Act and the MTP Act. For the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, we clarify that the RMP, only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act. The RMP who has provided information under Section 19(1) of the POCSO Act (in reference to a minor seeking medical termination of a pregnancy under the MTP Act) is also exempt from disclosing the minor’s identity in any criminal proceedings which may follow from the RMP’s report under Section 19(1) of the POCSO Act. Such an interpretation would prevent any conflict between the statutory obligation of the RMP to mandatorily report the offence under the POCSO Act and the rights of privacy and reproductive autonomy of the minor under Article 21 of the Constitution. It could not possibly be the legislature’s intent to deprive minors of safe abortions.

Addressing healthcare disparities: Challenges in access to safe abortion services in rural India

As per Rural Health Statistics Report 2021-2022³⁰ issued by Government of India, Ministry of Health & Family Welfare, there are significant gaps in the infrastructure providing specialised care at Community Health Centers (CHCs). The report reveals that CHCs lack 83.2% of the required surgeons, 74.2% of the required obstetricians and gynaecologists, 79.1% of physicians, and 81.6% of the required paediatricians. Overall, there is a shortfall of 79.5% specialists at CHCs compared to the existing requirements.

Given that the rural population constitutes a significant percentage of the total population in India (reported at 64.13% in 2022 according to the World Bank), these deficiencies in specialised care contribute to unsafe abortions. Lack of accessibility of proper termination in rural regions also contribute to indecisiveness and delayed termination. Furthermore, societal stigma surrounding abortion adds another layer of complexity. Fear of disclosure, lack of support, and limited awareness all contribute to delays in seeking medical termination.

Delays arising from police officers’ lack of knowledge and sensitivity

In X v. State of Odisha³¹, the High Court of Orissa observed that, the factual matrix of the case suggested that the petitioner and her father initially approached the police station for the purpose of termination of pregnancy, but were directed to approach the court concerned as the charge-sheet was filed by then. In this regard, the Court feltthat the police officers could have acted more sensibly and, at the very least, guided them to approach District Legal Service Authority or legal services units at taluk level or to any para-legal volunteers. This would have, perhaps, helped the victim to get timely legal advice and may have saved her from suffering the forced delivery, imposed on her due to medicolegal compulsions.

In para 18, the Court held that, 18. It is imperative that every policeman should be given proper understanding of the working of legal services authority at different levels. The legal services authority could provide training modules to the police stations to sensitise and make the police officers aware of the role and functions of the authority. Upon registering a case, the police officers could then do well to suggest the victims to approach to the nearest legal service authority for legal assistance, if required. The legal services authority at district level are also required to coordinate with the Police Department in setting up legal aid booths or providing legal services helpline numbers at each and every police station. The helpline numbers could be displayed in each police station to assist the victims. Time is of the essence in matters involving MTP Act and no victim should suffer due to lack of onerous obligations involved in the process. Therefore, the role of legal services authority at district and taluk level assumes paramount importance to ensure no victim suffers due to lack of timely legal assistance.³²

In the above case, the pregnancy exceeded 24 weeks and as per the requirement of the statute, the medical opinion of not less than two medical practitioners has also not been obtained. Moreover, there is no medical opinion that termination of pregnancy is immediately necessary to save the life of the petitioner as per Section 5 of the MTP Act. Viewed from every angle, the provisions of the MTP Act do not permit the termination of pregnancy of the petitioner. Hence the Court could not grant termination order however in the interest of the victim and unborn child issued necessary directions.

Given the above judgment, it can be inferred that there should be sensitivity in handling medical termination cases, particularly in rape cases where the mental agony is beyond explanation and time in medical termination cases holds significant role.

Ensuring awareness and sensitivity in medical termination cases: Role of grassroots institutions

In India, medical termination is allowed even beyond 24 weeks of pregnancy under specific circumstances. If termination is necessary to save the life of the pregnant woman, the opinion of one registered medical practitioner under Section 5 suffices. Alternatively, if there are substantial foetal abnormalities, termination can be approved by the Medical Board under Section 3(2-B) read with Rule 3-A(a)(i).

In the recent case of A (Mother of X) v. State of Maharashtra³³, the Supreme Court allowed termination of pregnancy beyond 24 weeks for a 14-year-old minor girl who was victim of sexual assault and she found out to be pregnant at later.

Many people are still unaware of the jurisdiction of the Supreme Court and High Court. Considering the rural population of India, accessibility to the Supreme Court and High Court is limited due to lack of knowledge or resources. Therefore, it is essential to promote sensitivity towards such medical termination cases from the grassroots level.

District Legal Services Authorities (DLSA), State Welfare Department, police, and medical practitioners play significant roles in educating the public and understanding the serious implications of delayed medical termination.

Delay caused by unawareness of family planning procedures

Addressing the issue of unwanted pregnancies, particularly among married women, is paramount. In XYZ v. Union of India³⁴, the Supreme Court observed that the absence of adequate family planning measures can lead to unwanted and avoidable pregnancies. The Court emphasised the need for the Central and State Governments to promote awareness about family planning, maternal health, and child welfare schemes among citizens, especially married couples. In the same case, the petitioner admitted to being ignorant of family planning procedures and her pregnancy came as an utter shock to the petitioner for the reason that she did not realise that she had an on-going pregnancy since she had adopted LAM which implies absence of menstruation due to continuing breastfeeding as a contraceptive method after delivery of the second child. The Supreme Court observed “An unplanned pregnancy not only leads to the birth of an unwanted child, it is accompanied by myriad anxieties and complications that travel beyond the health of the mother, on a psychological and mental plane. It is, therefore, expected of married couples to be careful in planning their families and take adequate timely precautions so that they do not end up knocking at the doors of the Court at the eleventh hour, praying for termination of pregnancies that have crossed the critical period as in the instant case, 26 weeks.”

Considering the above circumstances, it is important to state here that gynaecologists and obstetricians play a crucial role in educating individuals about measures to prevent unwanted pregnancies, thereby reducing the need for terminations at later stages due to unawareness. By providing comprehensive information and guidance on contraceptive methods and family planning, healthcare professionals can contribute to preventing unwanted pregnancies and ultimately saving lives.

Conclusion

In conclusion, time is of the essence when it comes to accessing termination of pregnancy, especially in cases of unwanted pregnancies or those resulting from rape or sexual assault. Delaying access to these services can exacerbate the mental and physical stress faced by individuals, particularly children, adolescents, and women, potentially leading to adverse health consequences or even fatal outcomes. It is imperative to make medical termination services readily accessible in rural areas by ensuring the availability of registered medical practitioners and improving overall healthcare infrastructure. Further delays in giving accurate medical assessments and incomplete medical reports can have profound implications for individuals seeking termination of pregnancy, leading to unnecessary physical and mental anguish. Therefore, it is imperative for Medical Boards to conduct thorough evaluations, provide comprehensive reports, and ensure consistency in their assessments to uphold the rights and well-being of pregnant individuals.

It was rightly discussed in Z v. State of Bihar³⁵ that that element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman are not hindered. The fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be overemphasised.

Moreover, the Government should prioritise efforts to address gaps in medical health infrastructure to enhance the quality and accessibility of reproductive healthcare services. Awareness programs focusing on family planning and contraceptive measures should be implemented at the grassroots level to empower individuals with knowledge and options to prevent unwanted pregnancies.

Additionally, it is essential for law enforcement agencies, particularly the police, to handle matters related to termination of pregnancy with sensitivity for victims who are minors, survivors of rape, sexual assault or incest and provide the right guidance and support to individuals seeking assistance. Sensitivity to time is very important and every authority should be sensitive towards this.