“Would Amount to Foeticide”: Bombay High Court Draws a Constitutional Line on Late-Term Abortion

In a sensitive and legally complex ruling, the Bombay High Court has refused permission to terminate a 28-week pregnancy, holding that doing so would amount to foeticide as the foetus is healthy, viable, and capable of independent life.

The decision underscores how reproductive autonomy, statutory limits, and foetal rights intersect under Indian constitutional law.

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The Case in Brief

The petition was filed by the mother of an 18-year-old girl, seeking termination of pregnancy that arose from a relationship when the girl was 17 years old.

The plea stated that:

• The relationship involved a promise of marriage

• An FIR was registered on January 2 after the pregnancy was discovered

• The teen did not wish to continue the pregnancy

Despite acknowledging the personal hardship involved, the Court refused to permit medical termination at this advanced stage.

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What the Medical Board Found

The High Court relied heavily on the medical board’s opinion, which stated that:

• The pregnancy was at 28 weeks

• The foetus showed no congenital abnormality

• There was a high probability of a live birth if termination were attempted through pre-term delivery

This medical assessment became decisive in the Court’s constitutional balancing exercise.

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Why the Court Said “No”

A Division Bench of Justice Ravindra Ghuge and Justice Abhay J. Mantri observed that:

• While the relationship was legally impermissible due to age, it was factually consensual

• At 28 weeks, the foetus is viable and independent

• Termination at this stage would cross the line from abortion to foeticide

The Court noted that it was bound by:

• The Medical Termination of Pregnancy Act, 1971 (as amended in 2021)

• Supreme Court precedents restricting late-term abortions except in cases of grave foetal abnormality or threat to the mother’s life

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Constitutional and Statutory Framework

The ruling reflects a careful reading of:

• Article 21 of the Constitution — protecting both bodily autonomy and the right to life

• MTP Act, 1971 — which generally caps termination at 24 weeks, with narrow exceptions

• Supreme Court jurisprudence distinguishing reproductive choice from termination of a viable foetus

The High Court made it clear that judicial sympathy cannot override statutory limits and medical viability.

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State Responsibility Does Not End with Refusal

Importantly, the Court did not abandon the petitioner after denying termination.

It directed that:

• The girl must receive full medical and psychological support

• All costs will be borne by the State

• A female psychologist or counsellor must be provided

• The Child Welfare Committee will assist with post-delivery care and adoption, if the mother so chooses

This aspect reflects the Court’s recognition that denial of abortion must be accompanied by State care, not silence.

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Why This Judgment Matters

This ruling reinforces a crucial legal principle:

Reproductive autonomy is constitutionally protected—but it is not absolute.

Once a pregnancy crosses into the zone of foetal viability, courts are required to balance:

• The woman’s autonomy

• The statutory framework

• The independent right to life of the unborn child

The judgment clarifies that late-term abortion cannot be treated as an automatic right, even in emotionally difficult circumstances.

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The Takeaway

The Bombay High Court’s ruling is not a moral judgment—it is a constitutional one.

It draws a firm legal boundary between:

• Choice, and

• Foeticide, as defined by law, medicine, and precedent

At the same time, it reiterates that the State’s duty of care intensifies when choice is legally denied.