A division bench of Justices A S Oka and M S Sonak in its judgement on Wednesday, however, said permission from either the HC or the Supreme Court will have to be sought when a pregnancy has exceeded 20 weeks and the woman feels its continuation would involve risk to her or the foetus’ mental/ physical health.
The bench also directed the Maharashtra government to constitute medical boards at district levels within three months to examine pregnant women, who wish to terminate their pregnancy after it has crossed the 20-week period.
Under provisions of the Medical Termination of Pregnancy (MTP) Act, a pregnancy that has crossed the 20-week period cannot be terminated.
The bench in its order noted that there has been an increase in number of pleas in the high court by women seeking to terminate pregnancy either on grounds that the foetus developed abnormalities or because continuation of the pregnancy was causing mental or physical anguish.
The bench said high courts can permit women to undergo medical termination of their pregnancy in contingencies even though its length may have exceeded 20 weeks.
“In cases where a registered medical practitioner is of the opinion, formed in good faith, that termination of pregnancy, which has exceeded 20 weeks, is immediately necessary to save the life of the pregnant woman, there is no necessity for even seeking any permission,” the court said.
“Thus, if a doctor is of the opinion that if the pregnancy is not medically terminated immediately the woman may die, then it is the duty of such a doctor to undertake the termination process and the MTP Act provisions will afford immunity to such doctors,” it said.
The bench said permission from HC will be necessary if a woman seeks to medically terminate her pregnancy not on the grounds that are not immediately required to save her life, but on grounds like its continuance would involve grave injury to her physical/mental health and/or there is substantial risk that the child when born would suffer from abnormalities.
The court also made it clear that if despite attempts at medical termination of pregnancy the child is born alive, then the doctor and the hospital concerned will have to assume full responsibility to ensure the baby is offered the best medical treatment.
“Though there is a debate as to whether the foetus is a person entitled to rights, there is no debate on the issue that a child born alive is a person, in whom the right to life and personal liberty inheres,” the court said.
“We make it clear that under no circumstances such a child must be neglected or left to perish, particularly where the woman or her family members may not be in a position to or not willing to assume responsibility,” it said.
The court observed that in ideal situations, the instinct of the parents will no doubt take over when it comes to the love and care to be offered to such a child.
“However, in the unfortunate situation where, for several myriad factors, the parents are unwilling or genuinely not in a position to care for the child, then the state government will assume parental responsibility towards such a child,” the court said.
The bench directed the government to frame a policy to address such situations and sought an affidavit of compliance from the state health secretary on July 8.