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Bombay High Court allows medical termination of 26-week pregnancy of 18-year-old woman

A bench headed by Justice Ujjal Bhuyan and Justice Madhav Jamdar from a perusal of the report found that though there are no pregnancy-related abnormalities in the petitioner as well as in the foetus, the report nonetheless says that petitioner has moderate depressive episode but opines that with treatment further continuation of pregnancy is unlikely to adversely affect her mental health.

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The Bombay High Court has recently allowed an 18-year-old woman’s plea for medical termination of her 26-week pregnancy considering her socio-economic status.

The petitioner is an 18-year-old unmarried woman and her father is an auto-rickshaw driver while her mother sells vegetables. She sought medical termination of her 26-week pregnancy on the ground that the further continuation of pregnancy will adversely affect her mental health.

On September 29, 2021, the Court had directed Grant Government Medical College and J.J.Group of Hospitals, Mumbai to constitute a medical board for examination of the petitioner including the status of her mental health due to her pregnancy and thereafter to submit a report.

A bench headed by Justice Ujjal Bhuyan and Justice Madhav Jamdar from a perusal of the report found that though there are no pregnancy-related abnormalities in the petitioner as well as in the foetus, the report nonetheless says that petitioner has moderate depressive episode but opines that with treatment further continuation of pregnancy is unlikely to adversely affect her mental health.

It is also stated that the mental condition that the patient suffers from does not fulfill the criteria of substantial risk of causing grave mental injury to the mother and hence does not warrant medical termination of pregnancy.

The petitioner’s counsel submitted that the medical board has ignored psychological condition of the petitioner including her suicidal tendencies. He submitted that on September 30, the petitioner was advised admission for psychological testing but the parents were not willing for admission. He has also referred to various provisions of the Medical Termination of Pregnancy Act, 1971 and submits that notwithstanding the report of the medical board as above, present is a fit case for allowing medical termination of pregnancy of the petitioner.

He additionally submitted that the petitioner has just completed 18 years of age and her entire life lies ahead of her. Compelling her to carry forward the pregnancy and to have an unwanted child would gravely violate her right to life under Article 21 of the Constitution of India.

The AGP, on the other hand, relied on the medical report as extracted above and submitted that in view of such categorical finding of the medical board the question of allowing medical termination of pregnancy of the petitioner does not arise. She has also referred to materials on record to point out that in the course of petitioner’s medical examination she did not allege any rape or sexual assault. Therefore, the present is not a fit case for allowing medical termination of pregnancy.

The Parliament has enacted the Medical Termination of Pregnancy (Amendment) Act 2021 whereby the upper limit for statutorily permitting medical termination of pregnancy has been extended from 20 weeks to 24 weeks.

The Court  found  that as per section 3(2)(b)(i), one of the grounds for permitting medical termination of pregnancy is that continuance of the pregnancy would cause grave injury to the mental health of the pregnant woman. As per sub-section (3) of section 3, in determining whether continuance of the pregnancy would involve such risk of injury to the health of the pregnant woman, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

After making a detailed analysis, the court held that the expression “mental health” is a wider concept encompassing within its fold the expression “mental illness”. Many individuals with poor mental health may not be formally diagnosed with any mental illness. Mental state of a person is a continuum with good mental health at one end and diagnosable mental illness at the opposite spectrum. Therefore, though sounding alike the expressions “mental health” and “mental illness” are not the same. Legislature has consciously used the expression “mental health” in section 3(2) (b)(i) of  Medical Termination of Pregnancy Act, 1971 in contradistinction to the expression “mental illness” or “mentally ill person”.

Reference was made to the decision of the High Court in High Court on its Own Motion Vs. State of Maharashtra, 2017 Cr.L.J. 218, where it was held that unwanted pregnancy would undoubtedly affect the mental health of the mother as there are social, financial and other aspects immediately attached to the pregnancy.

“The socio-economic condition/ status of the petitioner is clearly discernible. Sub-section (3) of section 3 as extracted above mandates that while taking the decision as to whether continuance of pregnancy would involve such risk of injury to the health of the mother, account may be taken of the pregnant woman’s actual or reasonable foreseeable environment which expression was elaborately explained by us in Sidra Mehboob Shaikh (supra). In the facts and circumstances as narrated above, compelling the petitioner, a girl of tender age, to have an unwanted child may lead to disastrous consequences for the rest of her life not only for the petitioner but for the entire family,” the order reads.

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