Hindustan Times ·
HC issues notice to state over order mandating court’s intervention in post-24-week MTP cases
Forcing a minor rape victim or a person with mental disabilities to navigate complex legal machinery, locate advocates, and wait for judicial listings inflicts deep psychological and physical trauma, bench says
MUMBAI: The Bombay High Court has sought a response from the Maharashtra government on a public interest litigation (PIL) challenging a government resolution (GR) directing rape survivors, minors, and persons with disabilities seeking medical termination of pregnancy beyond 24 weeks to approach courts, stating that “forcing a minor rape victim or a person with mental disabilities to navigate complex legal machinery, locate advocates, and wait for judicial listings inflicts deep psychological and physical trauma”.
A division bench of chief justice Maheshchandra Tripathi and justice Advait Sethna on Friday issued a notice to the state government, seeking its response, and posted the matter for hearing on October 9.
The petition, filed by the Medico Legal Society of India (MLSI), an association of doctors and lawyers working for systemic public health justice, states that the June 2024 GR shifts the executive and clinical burden entirely onto the judiciary and creates an adversarial legal barrier for victims of trauma during a time-sensitive medical situation.
It says that the GR explicitly bars medical boards from offering an expert clinical opinion on survivors of sexual assault or minors who are beyond 24 weeks of pregnancy, prompting the state to effectively abdicate its primary administrative duties and offload them entirely onto the high court. Under the Medical Termination of Pregnancy (MTP) Act, termination is permitted only up to 24 weeks, subject to certain conditions.
The PIL also highlights a critical systemic vacuum due to the complete absence of a comprehensive Standard Operating Procedure (SOP) governing the clinical, ethical, and logistical realities of late-term MTPs. It says the absence of an SOP has led to conflicting judicial pronouncements, uncertainty regarding foeticide versus pre-term delivery, and unresolved legal, ethical, and financial liabilities.
The association also cites a series of conflicting court orders in cases involving pregnancies beyond 24 weeks to highlight the uncertainties faced by doctors and patients. It refers to cases where termination was permitted at 30 and 31 weeks, as well as to a Supreme Court order from 2023 that refused termination at 26 weeks, after noting that the foetus was viable.
Among its proposed SOPs, MLSI has sought the formation of district-level medical boards to evaluate such cases: the boards shall be empowered to permit foeticide in cases where there is foetal abnormality, permit foeticide for minor rape even if there is no foetal abnormality up to 30 weeks of gestation, refuse to carry foeticide and termination of pregnancy beyond 24 weeks in all other cases, including minor victims of rape beyond 30 weeks. However, it says, if the woman is unhappy with the board’s decision, she can appeal to the region-wise state medical board, and such appeals must be adjudicated within 48-72 hours.
The proposed framework also seeks state-declared infrastructure required for termination of pregnancies beyond 24 weeks, standardised clinical triggers and guidelines for foeticide via intracardiac injection; training for doctors, and a protocol to be followed by medical boards and doctors performing the procedure, including provisions for biomedical waste disposal.