IMPORTANT POINT
The judgment reaffirms the importance of reproductive rights and decisional autonomy of women, as well as the legal provisions under the Medical Termination of Pregnancy Act, 1971, and Article 21 of the Constitution of India.

The petitioners are a married couple. This writ petition has been filed seeking permission for medical termination of pregnancy of the 1st petitioner on the ground of substantial abnormalities of the foetus.

2. The petitioners were married on 20/5/2023. On 29/10/2023, the petitioners after conducting a medical examination found that the 1st petitioner was pregnant. Later, on scanning, certain abnormalities were found on the head and spine of the foetus. According to the petitioners, on subsequent medical consultation, certain substantial deformities and abnormalities were diagnosed in the head, spine and face of the foetus. Therefore, they decided to terminate the pregnancy and approached the 5th respondent hospital on 22/4/2024 and intimated their willingness to terminate the pregnancy. However, the 5th respondent informed that as the gestational age of the foetus was 25 weeks, termination of pregnancy can be done only after obtaining orders from the court. It is in these circumstances, that the petitioners have approached this court.

3. I have heard Sri.Sidharth O., the learned counsel for the petitioners, Sri.T.C.Krishna, the learned senior panel counsel appearing for the 1st respondent and Smt.Deepa Narayanan, the learned Senior Government Pleader appearing for respondents 2 to 6.

4. The Medical Termination of Pregnancy Act, 1971 (for short, the MTP Act) deals with the termination of certain pregnancies by registered practitioners. The Act permits licenced medical professionals to perform abortions in specific predetermined situations as provided under the legislation – such as, when there is danger to the life or risk to the physical or mental health of the pregnant women, when pregnancy arises from sex crime or rape or intercourse with lunatic women etc., and when there is substantial risk that the child when born would suffer from deformities and diseases. The MTP Act was amended in 2021 to allow certain categories of women such as rape victims, minors, mentally ill women etc. to obtain abortions up to 24 weeks of gestation, raising it from the previous 20 weeks. On scrutiny of Section 3, with reference to sub-section (2), it is seen that medical termination of pregnancy can be permitted up to 24 weeks if the continuance of the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health. An exception is carved out by clause (2B) of subsection (2) of Section 3, as per which provisions of sub-section (2) relating to the length of pregnancy shall not apply to the termination of pregnancy if such termination is necessitated by the diagnosis of any substantial foetal abnormalities by a medical board. Thus, termination of pregnancy can be permitted even if gestational age of the foetus is more than 24 months, if the duly constituted Medical Board certifies that there is substantial foetal abnormalities.

5. The right of a woman or a girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy. Reproductive rights include the right to choose whether and when to have children, the right to choose the number of children and the right to access to safe and legal abortions. The constitutional right of women to make reproductive choices as a part of personal liberty under Article 21 of the Constitution of India was firmly recognized by the Supreme Court in the landmark judgment in K.S.Puttaswamy v. Union of India [(2017) 10 SCC 1]. The Constitution Bench reiterated the position adopted by the three-judge Bench in Suchita Srivastava v. Chandigarh Administration, [(2009) 9 SCC 1] which held that the right of a woman to have freedom to reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution and that she has sacrosanct right to her bodily integrity. Following Puttaswamy (supra), the three-judge Bench of the Supreme Court, recognizing the im