IMPORTANT POINT
Although termination of pregnancy after 20 weeks is not permissible u/s 3, MRTP Act, 1971; section 5 permits termination of pregnancy beyond 20 weeks to save life of pregnant woman.

ORDER

1. By our Motion Bench order dated 22.07.2016, we had accepted the suggestion of the learned Solicitor General for India, and the learned counsel for the State of Maharashtra in directing respondent No.2 – the State of Maharashtra, to constitute a Medical Board at KEM Hospital and Medical College, Mumbai, to medically examine the petitioner.

2. In furtherance of the direction issued by this Court, a Medical Board comprising of the following seven doctors was constituted at the KEM Hospital and Medical College, Mumbai.

1. Dr. Avinash N.Supe, Director (Medical Education & Major Hospitals) & Dean (G&K) – Chairman

2. Dr. Shubhangi Parkar, Professor and HOD, Psychiatry, KEM Hospital

3. Dr. Amar Pazare, Professor and HOD, Medicine, KEM Hospital

4. Dr. Indrani Hemantkumar Chincholi, Professor and HOD, Anaesthesia, KEM Hospital

5. Dr. Y.S.Nandanwar, Professor and HOD, Obstetrics & Gynecology, LTMMC and LTMG Hospital

6. Dr. Anahita Chauhan, Professor and Unit Head, Obstetrics & Gynecology, KEM Hospital

7. Dr. Hemangini Thakkar, Addl. Professor, Radiology, KEM Hospital.

3. The Medical Board has submitted a report dated 23.07.2016, which is taken on record and marked as Annexure A. In its analysis, the report inter alia recorded as under:

“4. From General Medical Examination she has no active medical complaints.

5. Obstetric examination shows 24 weeks pregnancy, with severe polyhydramnios, with fetal parts not felt. On internal examination, the cervix is closed and high up.

6. Radiological diagnosis is single live fetus with gestational age of 23 weeks 3 days with following malformations:

1) excencephaly, i.e. evidence of no skull valut above orbit, with presence of brain tissue floating in amniotic fluid, 2) Omphalocele (presence of liver, intestines and stomach bubble outside the abdomen and in the amniotic cavity). 3) Heart is bulging into the omphalocele sac. 4) Kyphoscoliosis which is an anomlay of the spine involing the thoracolumbar vertebrae with polyhydramnios (excessive amniotic fluid) with closed vertix.”

4. Based on the above medical examination, the findings of the Medical Board were expressed as under:

“1. Current pregnancy is about 23-24 weeks by clinical and radiological evaluation.

2. In view of severe multiple congenital anomalies, the fetus is not compatible with extra-uterine life.

3. Risk to the mother of continuation of pregnancy can gravely endanger her physical and mental health.

4. Risk of termination of pregnancy is within acceptable limits.

Hence the Medical Board advises that the patient, Ms.X should not continue with this pregnancy.”

5. The question that arises for our consideration is, whether it would be justified and legal, to terminate the pregnancy of the petitioner, which the Medical Report itself shows, as of 24 weeks duration? Learned Attorney General representing the Union of India has invited our attention to Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as `the Act') which is extracted below:

“3. 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 to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it wo