The Bombay High Court’s rulings allowing women to terminate pregnancies beyond the standard
20/24-week limit set by the Medical Termination of Pregnancy (MTP) Act is significant. They highlight
the court’s recognition of individual circumstances and the importance of reproductive autonomy.
- Contextual Overview of the Rulings
Beyond the Letter of the Law: The MTP Act initially set a 20-week limit for abortions, which was
later extended to 24 weeks in 2021 under certain conditions (such as rape survivors, minors, or
cases of significant fetal abnormality). However, the law doesn’t explicitly address situations
where severe medical conditions affecting the pregnant woman arise later in the pregnancy, or
when mental health concerns are paramount
Case-Specific Considerations: The Bombay High Court’s decisions emphasize that each case is
unique and must be evaluated based on its specific facts and circumstances. This is crucial
because blanket restrictions can lead to unjust outcomes
Medical Board Opinions: The courts heavily rely on the opinions of medical boards that assess
the woman’s physical and mental health, the viability of the fetus, and the potential risks
associated with continuing or terminating the pregnancy. This ensures that the decisions are
grounded in medical expertise.
2. Detailed Examination of the Legal and Ethical Framework
The MTP Act and its Evolution: The MTP Act of 1971 was a landmark piece of legislation that
decriminalized abortion under certain conditions. The 2021 amendment extended the gestational
limit for specific categories of women and introduced the requirement of a medical board to
assess cases beyond 24 weeks where fetal abnormalities are suspected. However, gaps remain in
addressing situations that arise later in pregnancy due to unforeseen medical conditions or severe
mental health crises.
Reproductive Autonomy as a Fundamental Right: The High Court’s rulings underscore the
importance of reproductive autonomy, which is closely linked to the right to life and personal
liberty under Article 21 of the Indian Constitution. Reproductive autonomy means that
individuals have the right to make decisions about their bodies, including whether to have
children, how many children to have, and when to have them.
Foetal Rights vs. Women’s Rights: A Complex Balance: The question of when a fetus acquires
rights is a deeply contested ethical issue. The Bombay High Court, in line with international
human rights norms, has stated that a fetus is not considered a person with legal rights until birth.
This does not diminish the moral considerations surrounding abortion, but it prioritizes the
pregnant woman’s rights to life, health, and bodily integrity.
Mental Health as a Valid Ground for Termination: Mental health is increasingly recognized as a
critical aspect of overall well-being and a valid factor in abortion decisions. The Bombay High
Court’s rulings acknowledge that forcing a woman to continue a pregnancy that would severely
damage her mental health is a violation of her fundamental rights.
Social and Practical Implications
Access to Safe Abortion Services: Restrictive abortion laws can force women to seek unsafe
abortions, which can lead to serious complications, including death. Allowing legal abortions,
even at later stages of pregnancy when medically necessary, ensures that women have access to
safe and regulated medical care.
Impact on Women’s Lives: Denying a woman the right to terminate a pregnancy can have
profound social and economic consequences. It can affect her education, career, and overall
quality of life, particularly for women from disadvantaged backgrounds.
Addressing Social Stigma: Abortion is often stigmatized in many societies, leading to feelings of
shame and isolation for women who choose to terminate a pregnancy. The Bombay High Court’s
progressive stance can help to reduce this stigma and promote open and honest conversations
about reproductive health.
The Role of Medical Professionals: The rulings place a significant responsibility on medical
professionals to provide accurate information, compassionate care, and unbiased counseling to
women facing difficult decisions about their pregnancies.
4. The Broader Context of Abortion Rights in India
Progressive Legislation with Gaps: India has a relatively liberal abortion law compared to many
other countries. However, challenges remain in ensuring that all women have access to safe and
legal abortion services, particularly in rural areas and among marginalized communities.
Need for Comprehensive Reproductive Healthcare: Beyond abortion, there is a need for
comprehensive reproductive healthcare services, including contraception, prenatal care, and
postnatal care. This would empower women to make informed choices about their reproductive
health and reduce the need for abortions in the first place.
Recent Cases and Rulings
Skeletal Dysplasia: In February 2025, the Bombay High Court, presided over by Justices Revati
Mohite-Dere and Neela K. Gokhale, allowed a 35-year-old woman to terminate her 25-week
pregnancy at a private hospital[4]. The petitioner approached the court after being unable to
terminate her pregnancy at her chosen private hospital due to MTP rules[4]. The medical board of
doctors from JJ Hospital examined the case and recommended termination, citing that the foetus
had skeletal dysplasia and other conditions with high post-natal morbidity, requiring multiple
corrective surgeries for severe deformities, potential risks of infertility, and hypogonadism. The
court, acknowledging the woman’s right to reproductive freedom, autonomy, and choice,
permitted the termination[4]. The private hospital submitted an affidavit stating that it complied
with the MTP Rules and had the required facilities and approval from the Brihanmumbai
Municipal Corporation to conduct the termination[4].
Cancer Diagnosis: In July 2024, the Bombay High Court allowed a married woman to terminate
her over 25-week pregnancy to allow her to receive treatment for pancreatic cancer[4]. Justices
Ajay Gadkari and Neela Gokhale noted that the woman was diagnosed with pancreatic cancer while pregnant[4]. The medical report did not indicate any risk to the woman’s life if she
underwent the Medical Termination of Pregnancy (MTP)[4]. The court acknowledged the
woman’s right to reproductive freedom, autonomy over her body, and right to choose, and
permitted the termination based on the medical board’s opinion and the woman’s wishes[4].
Mental Health Concerns: In another case, the Bombay High Court permitted a woman to
terminate a 25-week pregnancy, considering the petitioner’s mental health[4]. The court, presided
over by Justices N.R. Borkar and Somasekhar Sundaresan, allowed the termination at the earliest
and directed the Sassoon Hospital to ensure sensitive treatment, prioritizing the woman’s
emotional and mental health[4]. The petitioner, from a lower-income group, cited grave
psychological effects and social stigma as primary reasons for desiring the termination and argued
that she was just over nineteen and that continuing the pregnancy might risk maternal
mortality[4]. The court noted that the medical board’s report suggested the petitioner was
physically fit for the termination and emphasized the petitioner’s sovereign right to make an
autonomous choice about her body[4].
Rape Case: In May 2023, the Bombay High Court allowed the medical termination of a 23-week
pregnancy (MTP) of a rape survivor, observing that forcing her to continue with the pregnancy
would violate her fundamental rights[2]. The judges added that “although the statutory period of
twenty-four weeks is not over, however, in view of our above observations, we are inclined to
allow the petitioner to undergo medical termination of pregnancy”[2]. While permitting MTP to
be done at JJ Hospital, they directed blood and tissue samples of the foetus shall be preserved for
carrying out necessary medical tests including DNA and for the trial[2].
In conclusion, the Bombay High Court’s rulings represent a progressive interpretation of the law,
prioritizing women’s rights to life, health, and reproductive autonomy. They highlight the need for a
nuanced approach to abortion decisions, taking into account individual circumstances and medical
realities. While the legal and ethical debates surrounding abortion are complex and ongoing, these rulings affirm the importance of ensuring that women have access to safe, legal, and compassionate abortion care.
Citations:
[1]
https://indconlawphil.wordpress.com/2016/09/22/the-bombay-high-courts-abortion-judgment-some-unans
wered-questions/
[2]
https://timesofindia.indiatimes.com/city/mumbai/fundamental-right-bombay-hc-allows-mtp-in-rape-case/
articleshow/100577470.cms
[3]
https://www.livelaw.in/high-court/bombay-high-court/bombay-high-court-medical-termination-of-pregna
ncy-mentally-unstable-daughter-280134
[4]
https://indianexpress.com/article/cities/mumbai/bombay-hc-permits-woman-to-terminate-25-week-pregna
ncy-at-private-hospital-despite-24-week-bar-9835090/
[5] https://indiankanoon.org/doc/175209032/
Author
Krishnapriya Mishra
4th year Law Student at Xavier Law School, XIM University, Bhubaneswar, Odisha.
