Termination of pregnancy beyond 24 weeks is permissible under Section 3(2B) of the MTP Act when a medical board confirms substantial fetal abnormalities, as reproductive choice is a constitutionally protected facet of the right to life.

JUDGMENT

The petitioner has approached this Court seeking medical termination of her 27 weeks old pregnancy on account of serious fetal genetic abnormality detected during prenatal evaluation. According to the petitioner her elder child aged 10 is also suffering from neuro developmental and behavour abnormalities.

2. Petitioner is presently carrying a pregnancy of 27 weeks. The fetus in the present pregnancy was also found to harbour NOTCH 3 genetic variation associated with neuro developmental abnormalities. Subsequently genetic testing including exome sequencing was carried out and the same detected a class II heterozygous variation in the NOTCH3 gene. Parental carrier analysis further revealed that the said genetic variation was maternally inherited and present in the petitioner.

3. The genetic specialists opined that although the variation may manifest later considering the imaging correlations and serious neurodevelopmental manifestations already seen in the earlier child, it would be reasonable if the couple opts for termination of the pregnancy based on the test results. Accordingly, petitioner approached the competent medical board constituted under the Medical Termination of Pregnancy Act, 1971 (for short, the MTP Act) seeking permission for medical termination of pregnancy. After examining the petitioner, the Medical Board opined that petitioner is physically fit to undergo termination. Since the gestational age is advanced there exists the possibility of live birth and order from the court is required. Petitioner, therefore, seek for an order permitting her to undergo medical termination of pregnancy at 2^nd respondent hospital.

4. Heard the learned counsel for the petitioner and the learned Government Pleader.

5. The records produced by the petitioner would reveal that after examining the petitioner, the medical board opined for a medical termination of pregnancy.

6. 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 fetal abnormalities by a medical board. Thus, termination of pregnancy can be permitted even if gestational age of the fetus is more than 24 weeks, if the duly constituted Medical Board certifies that there is substantial fetal abnormalities.

7. A three-judge Bench of the Hon’ble Supreme Court, in Suchita Srivastava v. Chandigarh Admn. [(2009) 9 SCC 1], has held that the right to make reproductive choices is a facet of Article 21 of the Const