Libertatem Magazine

Abortion: Not anymore hard or fast

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A rape victim of 16 years had become pregnant. She had approached the Gujarat High Court at the 24th week of pregnancy to allow for abortion under the Medical Termination of Pregnancy Act (hereinafter MTP Act). You may find the complete MTP Act here.

Issues relating to abortion

Can the High court take into account the best interests of the child and allow for the abortion of a foetus that is older than 20 weeks under the MTP Act?


This issue is a much recent debate that is ongoing among the courts. The MTP Act provides that an abortion can be allowed only on a foetus that is 12 weeks to 20 weeks old. Also, the registered medical practitioner has to confirm under Section 3 of the MTP Act that the continuation of pregnancy shall be causing risk to the life of parent and/or child. In case of rape, Explanation 1 gives a legal presumption that the pregnancy would cause grave injury to the mental health of the woman.

Till recently, the courts had stuck to a hard-and-fast application of this rule. Therefore, if the woman became a little late to approach the court causing the foetus to cross the 20 weeks line, the courts often rejected the petition. But now, the courts have been taking a lenient view depending on the ‘best interests’ of the woman and also, depending on the facts of the case.

In this case too, the Gujarat High Court referred to the apex court decision in Chandrakant   Jayantilal Suthar v. State of Gujarat where the abortion of a 14 year old rape victim was allowed despite crossing the 20 weeks margin. The best interest test was elaborated in the case of  Suchita Srivastava & Anr. v. Chandigarh. It was observed by the court in that case –

In the present setting, this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the excise of reproductive rights.

Considering the same parameters, the court took a lenient view in this case as well. The court noted that forcing a minor girl who had undergone the trauma of rape to give birth shall be inhuman. Adding to that, the court also noticed that she was already facing health problems like anemia and she does not have the physical stamina to continue in pregnancy. Therefore, the court allowed the abortion of the foetus, although the minor was 24 weeks pregnant.

Learning Outcome

The courts have abandoned the hard-and-fast approach taken on abortion cases under the MTP Act. Even if woman crosses the 20th week of pregnancy, the abortion may be allowed depending on a case-to-case basis. Courts are taking decisions in accordance with the best interests of the pregnant woman.

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