SC says High Court can hear cases of abortion after 20 weeks off: HC flooded with petitions seeking termination of pregnancy

Supreme COurt. (File)

With the Supreme Court recently stating that high courts had jurisdiction to hear matters pertaining to abortion beyond the permissible limit of 20 weeks, the Bombay High Court received several petitions seeking medical termination of pregnancy in cases of abnormal growth of foetuses or where a minor or a woman is a rape victim.
According to lawyer Meenaz Kakalia, even when the cases were being heard by the Supreme Court, a large number of petitioners were from Maharashtra. “Such cases are first referred to a medical board. The court refers to the reports by the medical board to decide on the issue. If the report states that the foetus will grow to have serious physical handicap then usually, abortion is allowed in such cases. But it also depends on the personal views of a particular judge on the issue,” she said.

In October, while hearing a medical termination of pregnancy matter, the Supreme Court had said: “We make it clear that any future such cases can be filed in the respective High Courts having territorial jurisdiction.”
In the last month, with such matters being referred to the Bombay High Court, Kakalia has handled five cases.
“I have seen three others mentioned by other lawyers. I feel that in Maharashtra, there are more number of cases being referred to court as doctors are more open to informing
patients about the option,” Kakalia said.

In October, a division bench had refused permission to a 16-year-old rape survivor, who was in her 27th week of pregnancy, to undergo abortion citing the report of a panel of doctors that had examined her. In November, another bench of the Bombay High Court granted permission to a 28-year-old woman to medically terminate her 25-week foetus that was detected with neurological and skeletal abnormalities. The court held that “such fundamental right as conferred on the petitioner would not allow her to lead and live a life of misery”.

In December, the bench allowed a 13-year-old rape victim and a 27-year-old woman, whose foetus developed neurological complications, medical termination of pregnancies.

According to gynaecologist Dr Nikhil Datar, since the High Court started taking up the matters, he has advised in five such cases in the past one month. Speaking about the 13-year-old, Datar said: “She was granted permission to abort. But for a rape victim to approach court to allow her to abort an unwanted child is itself traumatising. There is a need to amend the act soon. Private hospitals should also be allowed to carry termination after 20 weeks if court permits.”
In 2008, Datar had filed a petition to increase the cap on abortion to 24 weeks of gestation period under the Medical Termination of Pregnancy Act, 1971. While the petition is pending in the Supreme Court, the Centre is deliberating on amending the act.

Following the apex court’s direction to each state to start taking up abortion petitions in cases of abnormal foetuses or pregnancies due to rapes, post the 20-week cap, the time taken for decisions to come has reduced to a week or so.
“There is now a set system and time to file petition and get the decision has greatly reduced,” Datar said. The petitions raised in the High Court have also sought to do away with the 20-week ceiling but with the matter to be heard by the Supreme Court, the High Court has not gone into the issue. According to the petitions, the Medical Termination of Pregnancy Act’s ban on abortion after the 20th week to protect the mental and physical health of the woman or girl has resulted in violation of the “petitioner’s rights to life, health, dignity, informed choice, reproductive autonomy, equality and to be free from inhuman and degrading treatment”. Kakalia said: “Women also withdraw petitions owing to family pressure.”

According to Dr Preeti Lewis, a gynaecologist attached to J J hospital, that has now formed a panel of radiologist, psychiatrist, gynaecologist and pediatrician to analyse cases of medical termination of pregnancy beyond 20 weeks, they receive at least two cases every week where woman or girls seek to undergo abortion under the MTP Act.

“In some cases, we find that foetal anomalies can be rectified through a surgery and the child can have normal growth. In these cases, we opine against termination. But in most cases, women delay sonography and birth defect is diagnosed too late,” Lewis said.

Recently, J J hospital opined to terminate pregnancy of a woman diagnosed with neural tube defect in foetus, heart disease and nervous system defect.

“We are seeing more cases of foetal defects beyond 20 weeks. Generally, such defects are diagnosed in 17th or 18th week. Either it is lack of awareness among pregnant women or delay by radiologists in detecting anomalies that is bringing up so many cases now,” Lewis added.

Ashok Anand, head of gynaecology department, J J hospital, said when gestation period is beyond 26 weeks, chances of live births are a possibility during abortions. “We have to provide the best care to the baby,” he said.