Holding

The Supreme Court held that the medical board must evaluate the pregnant person's physical and mental health, give primacy to the pregnant person's consent, and that the MTP Act protects medical practitioners acting in good faith, leading to the recall of the earlier order permitting termination.

Summary

A 14‑year‑old girl, X, who alleged sexual assault, became pregnant and sought termination of her pregnancy beyond the statutory 24‑week limit. The High Court denied the request, relying on a clarificatory opinion of a medical board that did not assess the impact on X's physical and mental health. The Supreme Court set aside the High Court order, directing a fresh medical board examination, which concluded that continuation would harm X's health and that termination could be performed safely. However, after the Court’s interim order, X's parents repeatedly changed their stance, ultimately opting to continue the pregnancy, leading the Court to recall its earlier direction to allow termination. The Court emphasized that the medical board must evaluate both physical and mental health, that the consent of the pregnant person is paramount, and that the MTP Act protects medical practitioners acting in good faith.

Issues considered

The extent to which a medical board under the MTP Act must consider the physical and mental health of a pregnant person, especially a minor, when recommending termination beyond 24 weeks.
Whether the consent of a minor pregnant person and her guardians is decisive in authorising termination of pregnancy.
The protection afforded to registered medical practitioners and medical boards from prosecution when forming opinions in good faith under the MTP Act.
The applicability of the MTP Act’s provisions on gestational limits, especially sections 3(2‑B) and 5, in cases of rape of a minor.
The appropriate role of the courts in balancing fundamental reproductive rights under Article 21 with medical board opinions.

Legislation cited

Constitution of Indias. Article 21
Medical Termination of Pregnancy Act, 1971s. 3(1), s. 3(2-B), s. 3(2-C), s. 3(2-D), s. 3(3), s. 3(4)(a), s. 5

Subjects

Termination of pregnancySexual assaultOrder recalled by the Supreme CourtTermination of an advanced pregnancyGestational age of the fetusWell-being and safety of the minorReproductive choiceRole of the registered medical practitionersRole of the medical boardGiving the child in adoption after the deliveryOpinion in good faithFear of prosecution among registered medical practitionersSafe and legal abortionsFundamental right of a pregnant personPhysical and mental health of the pregnant personChange in the opinion of the medical boardRight to reproductive autonomyRight to abortionGestational age above twenty-four weeksMinor’s view in termination of pregnancyUse of term ‘pregnant person’ instead of ‘pregnant woman’Cisgender womenNon-binary peopleTransgender menGender identitiesRestriction on the length of the pregnancy for terminationTerminating fetus with substantial abnormalitiesAbnormal fetus

Judgment

[2024] 5 S.C.R. 470 : 2024 INSC 371

A (Mother of X)
v.
State of Maharashtra & Anr.
(Civil Appeal No. 5194 of 2024)
29 April 2024
[Dr. Dhananjaya Y. Chandrachud,* CJI, J.B. Pardiwala and
Manoj Misra, JJ.]

Issue for Consideration
Matter pertains to the opinion of the medical board constituted
under the MTP Act to reflect the effect of the pregnancy on the
pregnant person’s physical and mental health; that the MTP Act
and the reproductive right of a pregnant person giving primacy to
their consent; and the usage of term ‘pregnant person’ instead of
term ‘pregnant woman’.

Headnotes
Medical Termination of Pregnancy Act, 1971 – Termination
of pregnancy – 14 year old girl subjected to sexual assault,
sought permission to terminate her pregnancy – Denied by the
High Court on the ground that the pregnancy exceeded the
statutory period of twenty-four weeks – In appeal, this Court
on basis of the fresh report of the medical Board, allowed
termination of pregnancy – When the said order passed, the
minor was in the thirtieth week of her pregnancy – Thereafter,
minor girl’s parents changing their statements, and matter
again before this Court:
Held: Sole and only consideration which must weigh with the
Court at this stage is the safety and welfare of the minor – In view
thereof, the earlier order passed by this Court is recalled – Said
decision made in light of the decisional and bodily autonomy of
the pregnant person and her parents – Performing a procedure
for termination of an advanced pregnancy, gestational age of the
fetus nearing end of thirty first week, is subject to risks involving
the well-being and safety of the minor as explained by the medical
team at the hospital – Guardians of the girl, namely her parents,
also consented for taking the pregnancy to term, as permissible
u/s. 3(4)(a) – View of the minor girl and her parents to take the
pregnancy to term in tandem of the MTP Act – Furthermore, the
* Author
[2024] 5 S.C.R. 471

A (Mother of X) v. State of Maharashtra & Anr.

MTP Act does not allow any interference with the personal choice
of a pregnant person in terms of proceeding with the termination
– Act or indeed the jurisprudence around abortion developed by
the courts leave no scope for interference by family or partner
of a pregnant person in matters of reproductive choice – Role of
the registered medical practitioners-RMPs and the medical board
must be in a manner which allows the pregnant person to freely
exercise their choice – In view thereof, the hospital directed to bear
all the expenses in regard to the hospitalization of the minor over
the past week and in respect of her readmission to the hospital
for delivery – In the event that the minor and her parents desire to
give the child in adoption after the delivery, the State Government
to take all necessary steps. [Paras 19, 32, 33, 35, 36]
Medical Termination of Pregnancy Act, 1971 – ss. 3(1), 3(2-
B) – Role of the registered medical practitioners-RMP and
medical board under the MTP Act:
Held: The Act protects the registered medical practitioners-RMP
and the medical boards when they form an opinion in good faith
as to the termination of pregnancy – Fear of prosecution among
registered medical practitioners is a barrier for pregnant persons to
access safe and legal abortions – Opinion of the RMP is decisive in
matters of termination of pregnancy under the MTP Act – Purpose
of the opinion of the RMP borrows from the legislative intent of the
MTP Act which is to protect the health of a pregnant person and
facilitate safe, hygienic, and legal abortion – It is therefore imperative
that the fundamental right of a pregnant person is not compromised
for reasons other than to protect the physical and mental health
of the pregnant person – Medical board, in forming its opinion on
the termination of pregnancies must not restrict itself to the criteria
u/s. 3(2-B) but must also evaluate the physical and emotional well
being of the pregnant person – When issuing a clarificatory opinion
the medical board must provide sound and cogent reasons for any
change in opinion and circumstances. [Paras 37, 29]
Constitution of India – Art. 21 – Right to reproductive autonomy
– Right to abortion – Fundamental right:
Held: Right to abortion is a concomitant right of dignity, autonomy
and reproductive choice – This right is guaranteed u/Art. 21 –
Decision to terminate pregnancy is deeply personal for any person
– Choice exercised by a pregnant person is not merely about their
reproductive freedom – Thus, it is imperative that the fundamental
472 [2024] 5 S.C.R.

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right of a pregnant person is not compromised for reasons other than
to protect the physical and mental health of the pregnant person –
Opinion of the pregnant person must be given primacy in evaluating
the foreseeable environment of the person u/s. 3(3) of the MTP
Act – Medical board and the courts need for giving primacy to the
fundamental rights to reproductive autonomy, dignity and privacy
of the pregnant person by the – Delays caused by a change in the
opinion of the medical board or the procedures of the court must not
frustrate the fundamental rights of pregnant people – Thus, the medical
board evaluating a pregnant person with a gestational age above
twenty-four weeks must opine on the physical and mental health of
the person by furnishing full details to the court. [Paras 21, 30, 31]
Constitution of India – Art. 21 – Right to reproductive autonomy
– Right to abortion – Pregnant person’s consent in abortion
– Primacy of – Importance of minor’s view in termination of
pregnancy:
Held: Right to choose and reproductive freedom is a fundamental
right u/ Art. 21 – Consent of the pregnant person in matters of
reproductive choices and abortion is paramount – Where the opinion
of a minor pregnant person differs from the guardian, the court
must regard the view of the pregnant person as an important factor
while deciding the termination of the pregnancy. [Paras 34, 35]
Gender Identities – Ambit of pregnancy – Enlargement of –
Usage of term ‘pregnant person’ instead of term ‘pregnant
woman’:
Held: Term ‘pregnant person’ used and recognized that in addition
to cisgender women, pregnancy can also be experienced by some
non-binary people and transgender men among other gender
identities. [Para 21]
Medical Termination of Pregnancy Act, 1971 – s. 3(1) –
When pregnancies may be terminated by registered medical
practitioners – Protection u/s. 3(1):
Held: s. 3(1) protects the registered medical practitioner from penal
provisions against abortion, under IPC, if it is carried out as per
the MTP Act – Moreover, no penalty may be attracted to a RMP
merely for forming an opinion, in good faith, on whether a pregnancy
may be terminated – This is because the MTP Act requires and
empowers the RMP to form such an opinion – Its bona fide assured,
no aspersions may be cast on the RMP – Same applies to medical
[2024] 5 S.C.R. 473

A (Mother of X) v. State of Maharashtra & Anr.

boards constituted u/s. 3(2-C) and 3(2-D) – Opinion of the RMP or
the medical board, is indispensable under the scheme of the MTP
Act – This inadvertently gives the power to the RMP or the medical
board to stand in the way of a pregnant person exercising their choice
to terminate the pregnancy – When there is fear or apprehension
in the mind of the RMP or the medical board it directly jeopardises
the fundamental freedoms of pregnant persons guaranteed under
the Constitution – However, the scheme of the MTP Act and the
steady line of application of the law by the courts has made it clear
that the RMP or the medical board cannot be prosecuted for any
act done under the MTP Act in good faith – Opinion of the RMP
and the medical board must balance the legislative mandate of the
MTP Act and the fundamental right of the pregnant person seeking
a termination of the pregnancy. [Paras 22, 23, 25]
Medical Termination of Pregnancy Act, 1971 – s. 3(1) –
Permission to terminate the pregnancy – Powers vested in
the Courts:
Held: Fundamental rights guaranteed under Part III of the Constitution
can be enforced – The courts apply their mind to the case and make
a decision to protect the physical and mental health of the pregnant
person – In doing so the court relies on the opinion of the medical
board constituted under the MTP Act for their medical expertise –
Court would thereafter apply their judicial mind to the opinion of the
medical board – Thus, the medical board cannot merely state that
the grounds u/s. 3(2-B) are not met – Exercise of the jurisdiction of
the courts would be affected if they did not have the advantage of the
medical opinion of the board as to the risk involved to the physical
and mental health of the pregnant person – Thus, a medical board
must examine the pregnant person and opine on the aspect of the
risk to their physical and mental health. [Para 27]
Medical Termination of Pregnancy Act, 1971 – ss. 5, 3(2-B)
– Restriction on the length of the pregnancy for termination
– Removal of:
Held: Restriction on the length of the pregnancy for termination is
removed, in two instances, firstly u/s. 5 prescribing that a pregnancy
may be terminated, regardless of the gestational age, if the medical
practitioner is of the opinion formed in good faith that the termination
is immediately necessary to save the life of the pregnant person;
and secondly u/s. 3(2-B) stipulating that no limit shall apply on the
length of the pregnancy for terminating a fetus with substantial
474 [2024] 5 S.C.R.

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abnormalities – Legislation has made a value judgment in s.3(2-B),
that a substantially abnormal fetus would be more injurious to the
mental and physical health of a woman than any other circumstance
– To deny the same enabling provision of the law would appear prima
facie unreasonable and arbitrary – Value judgment of the legislation
does not appear to be based on scientific parameters but rather on
a notion that a substantially abnormal fetus would inflict the most
aggravated form of injury to the pregnant person. [Para 28]

Case Law Cited
X v. State (NCT of Delhi) [2022] 7 SCR 686 : (2023) 9
SCC 433; XYZ v. State of Gujarat 2023 SCC OnLine
SC 1573; Z v. State of Bihar [2017] 8 SCR 212 : (2018)
11 SCC 572; Suchita Srivastava v. Chandigarh Admn.
[2009] 13 SCR 989 : (2009) 9 SCC 1 – relied on.

List of Acts
Medical Termination of Pregnancy Act, 1971; Constitution of India.

List of Keywords
Termination of pregnancy; Sexual assault; Order recalled by the
Supreme Court; Termination of an advanced pregnancy; Gestational
age of the fetus; Well-being and safety of the minor; Reproductive
choice; Role of the registered medical practitioners; Role of the
medical board; Giving the child in adoption after the delivery;
Opinion in good faith; Fear of prosecution among registered
medical practitioners; Safe and legal abortions; Fundamental right
of a pregnant person; Physical and mental health of the pregnant
person; Change in the opinion of the medical board; Right to
reproductive autonomy; Right to abortion; Gestational age above
twenty-four weeks; Minor’s view in termination of pregnancy;
Use of term ‘pregnant person’ instead of term ‘pregnant woman’;
Cisgender women; Non-binary people; Transgender men; Gender
identities; Restriction on the length of the pregnancy for termination;
Terminating fetus with substantial abnormalities; Abnormal fetus.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5194 of 2024
From the Judgment and Order dated 04.04.2024 of the High Court
of Judicature at Bombay in WPL No. 11208 of 2024
[2024] 5 S.C.R. 475

A (Mother of X) v. State of Maharashtra & Anr.

Appearances for Parties
Shantanu M. Adkar, Ms. Bharti Tyagi, Mustafa A. Khan, Advs. for
the Appellant.
Ms. Aishwarya Bhati, ASG, Akshaja Singh, Siddharth Dharmadhikari,
Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya
Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Ms. Yamini Singh,
Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI

Background
1. This appeal emanates from a judgment of a Division Bench of
the High Court of Judicature at Bombay dated 4 April 2024 which
denied the minor daughter of the Appellant (hereinafter referred to
as ‘X’) permission to terminate her pregnancy. ‘X’ is a minor, about
fourteen years of age and is alleged to have been subjected to
sexual assault in September 2023. The incident did not come to
the fore till ‘X’ revealed the incident on 20 March 2024 by which
time she was about 25 weeks into her pregnancy. ‘X’, it has been
averred, always had irregular periods and could not have assessed
her pregnancy earlier.
2. An FIR was registered with Turbhe MIDC Police Station against the
alleged perpetrator on 20 March 2024 for offences punishable under
Section 376 of the Indian Penal Code and Sections 4, 8 and 12 of
the Protection of Children from Sexual Offences Act 2012. ‘X’ was
taken to a hospital on 21 March 2024 for medical examination and
then transferred to the JJ Group of Hospitals, Mumbai for termination
of her pregnancy. On 28 March 2024 the medical board of the Grant
Government Medical College & Sir JJ Group of Hospitals, Mumbai
constituted under the Medical Termination of Pregnancy Act 19711
opined that ‘X’ was physically and mentally fit for termination of her
pregnancy subject to the permission of the High Court.

1 MTP Act
476 [2024] 5 S.C.R.

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3. The Appellant moved the High Court of Judicature at Bombay under
Article 226 of the Constitution seeking the termination of pregnancy of
her daughter. On 3 April 2024, the medical board issued a ‘clarificatory’
opinion, without re-examining ‘X’. The report denied the termination
of pregnancy on the ground that the gestational age of the fetus
was twenty-seven to twenty-eight weeks and that there were no
congenital abnormalities in the fetus.2 By the impugned judgment
the High Court dismissed the writ petition on the ground that the
pregnancy exceeded the statutory period of twenty-four weeks.
4. The Appellant moved this court under Article 136 of the Constitution.
The Special Leave Petition was mentioned for urgent orders after the
Court had risen on the conclusion of normal working hours at 5:15
pm on 19 April 2024. The Bench reassembled immediately thereafter
and had the benefit of hearing the counsel for the Appellant, the
Standing Counsel for the State of Maharashtra and Ms Aishwarya
Bhati, Additional Solicitor General. While issuing notice, this Court
took note of the fact that the report of the Medical Board dated 3 April
2024, which was relied upon by the High Court had not dealt with the
impact of the pregnancy on the physical and emotional well-being of
‘X’. Accordingly, a fresh Medical Board was directed to be constituted
under the Lokmanya Tilak Municipal General Hospital and Lokmanya
Tilak Municipal Medical College, Sion, Mumbai.3 This Court directed that:
"5. From the material which has been placed on the
record, a striking feature which has emerged before
this Court, prima facie, is that the medical report does
not contain an evaluation of the physical and mental
status of the minor, particularly having regard to the
background leading up to the pregnancy, including
the alleged sexual assault. Moreover, it would be
necessary that this Court is apprised whether the
carrying of the pregnancy to the full term would impact
upon the physical and mental well being of the minor
who is barely fourteen years old. The Medical Board

2 There is an inexplicable inconsistency on the gestational age in the report of the medical board of the
Grant Government Medical College & Sir JJ Group of Hospitals, Mumbai dated 28 March 2024. Point
5 and 6 of the report mention the gestational age as 27 weeks, but the opinion of the board in point 7
mentions the gestational age to be 28 weeks.
3 Sion Hospital
[2024] 5 S.C.R. 477

A (Mother of X) v. State of Maharashtra & Anr.

shall also opine on whether a termination of the
pregnancy can be carried out at this stage without
any threat to the life of the minor.
6. In this view of the matter, we are of the view that the
petitioner’s daughter should be examined afresh by
a Medical Board to be constituted at the Lokmanya
Tilak Municipal General Hospital and Lokmanya
Tilak Municipal Medical College, Sion, Mumbai
tomorrow (20 April 2024). We request the Medical
Superintendent of the hospital to constitute a Medical
Board for that purpose.”
5. A report has been submitted by the Sion Hospital. The minor was
examined by a team of six doctors constituted by the Dean. The
composition of the team was as follows:
(i) Dr Rajesh Dere, Prof. & Head Dept. of Forensic Medicine;
(ii) Dr Anagha Joshi, Prof. & Head Dept. of Radiology;
(iii) Dr Amarjitsingh Bawa, Additional Prof. Of Dept. of Gynecology
& acting Head of Department;
(iv) Dr Nilesh Shah, Prof. & Head Dept. of Psychiatry; and
(v) Dr Swati Manerkar, Prof. & Head Dept. of Neonatology;
6. After examining ‘X’, the medical board of the Sion Hospital opined that
the gestational age of the fetus was 29.6 weeks and continuation of
pregnancy will negatively impact the physical and mental well-being
of ‘X’. Further, it opined that the pregnancy can be terminated with
a degree of risk not higher than if the pregnancy was taken to term.
The medical board reported as follows:
“1. Whether carrying of the pregnancy to the full term
would impact upon the physical and mental well being of
the minor who is barely 14 years?
Ans. Yes, continuation of pregnancy against her will may
impact negatively on physical and mental well being of
the minor who is barely 14 year old.
2. The medical board shall also opine whether termination
of pregnancy can be carried out at this stage without any
threat to the life of the minor?
478 [2024] 5 S.C.R.

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Ans. Yes, termination can be carried out at this stage. The
threat of life to the patient if termination of pregnancy carried
out at this stage is not higher than the risk of delivery at
full term of pregnancy. Also in view of minor being barely
14 years, the chances of surgical intervention (Abdominal
Surgery) at term or now may be there.”
7. While forwarding the report of the Medical Board, the Dean of Sion
Hospital has noted the opinion of the Board in the following terms:
“The opinion of the committee is forwarded herewith for
your perusal. The committee has opined that the medical
termination of the pregnancy can be done with due risk and
with appropriate counseling of the patient and the relatives.
The Psychiatrist also contributed in evaluation of patient and
assessing the psychological state of the patient. According
to the committee report continuation of pregnancy could
cause psychological trauma to the patient.”
8. On 22 April 2024, this Court granted leave and pronounced its
operative order to set aside the judgment of the High Court of
Judicature at Bombay. In view of the urgency involved, while reserving
judgment, this Court allowed ‘X’ to terminate her pregnancy forthwith.
This Court noted as follows:
“10 The following circumstances have been borne in mind,
at this stage:
(i) The medical termination of pregnancy is sought in
respect of a minor who is 14 years old;
(ii) The pregnancy is alleged to be an emanation from a
sexual assault which has resulted in the registration
of a First Information Report. The FIR was recorded
on 20 March 2024 beyond the period of 24 weeks
envisaged in the MTP Act;
(iii) The minor was unaware of the fact that she was
pregnant until a very late stage;
(iv) The Medical Board at Sion Hospital has clearly opined
that the continuation of the pregnancy against the
will of the minor “may impact negatively on physical
[2024] 5 S.C.R. 479

A (Mother of X) v. State of Maharashtra & Anr.

and mental well being of the minor who is barely 14
years old”; and
(v) While a certain degree of risk is involved in every
procedure for medical termination, the Medical Board
has opined that the threat to life of the patient if
termination of pregnancy is carried out at this stage is not
higher than the risk of delivery at full term of pregnancy.
11. We will further elaborate on the guiding parameters
in a reasoned order which will be delivered separately.
However, bearing in mind the exigencies of the situation,
the welfare of the minor, which is of paramount importance
and her safety, we pass the following order:
(i) The judgment and order of the High Court of
Judicature at Bombay dated 4 April 2024 shall stand
set aside for reasons to follow;
(ii) The Dean at Sion Hospital is requested to immediately
constitute a team for undertaking the medical
termination of pregnancy of the minor in respect of
whom the Medical Board has submitted its report
dated 20 April 2024;
(iii) Arrangements shall be made by the State for
transportation of the minor to the Hospital and for her
return home after the completion of the procedure;
(iv) The State has agreed to bear all the expenses
in connection with the procedure and all medical
expenses required in the interest of the safety and
welfare of the minor; and
(v) Post-termination if any further medical care is required,
this may be ensured in the interest of the minor.”
9. The above direction requesting the Dean at Sion hospital to constitute
a team of doctors for undertaking the medical termination of pregnancy
of ‘X’ was based on the specific request of the appellant who is her
mother.
10. Subsequently, a communication dated 26 April 2024 was addressed
by the Dean at Sion hospital to Ms Aishwarya Bhati, Additional
Solicitor General. The communication reads thus:
480 [2024] 5 S.C.R.

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“Sub:-Guidance regarding Case No.9163/2024 order
dated 22.04.2024.
Ref:- Case No.9163/2024.
Respected Madam,
Order was given by Hon. Supreme Court of India to Dean
at LTMMC & LTMGH, Sion to immediately constitute a
team for undertaking the Medical termination of pregnancy
of the minor in respect of whom the Medical Board has
submitted its report dated 20.04.2024. On the basis of
the order the patient has been admitted at LTMMC &
LTMGH, Sion on 23.04.2024 under the expert care of
Dr. Amarjitsingh Bawa, Associate Professor & Unit Chief
Department of Gynecology.
The Team for undertaking the termination of pregnancy
is formed as below:-
1. Dr. Arun Nayak, Prof & Head, Department of Obst
& Gynecology.
2. Dr. Rahul Mayekar, Prof & Unit Chief, Department
of Obst & Gynecology.
3. Dr. Amarjitsingh Bawa, Asso. Prof & Unit Chief,
Department of Obst & Gynecology.
4. Dr. Swati Manerkar, Adhoc Prof & Head (I/C),
Department of Neonatology.
5. Dr. Nilesh Shah, Prof & Head, Department of
Psychiatry.
We request guidance of Hon. Supreme Court of India
before proceeding for termination of pregnancy in the said
case of minor girl in view of.
1. We would like to humbly bring to the attention of
the Honorable Supreme Court of India that the
minor girl’s mother is changing her statements.
On 24.04.2024 father and mother of the minor girl
gave in writing that they gave permission to stop
the baby’s heart in utero by injecting medicine in
the heart. They also gave permission for attempting
[2024] 5 S.C.R. 481

A (Mother of X) v. State of Maharashtra & Anr.

normal delivery of the minor girl by giving medicine.
During this, if the pregnant minor girl suffers any
problem, under such circumstances cesarean
section operation may be needed, and they gave
permission for the same. If even after giving injection
baby is born alive, then they would like to give the
baby for adoption.
2. On 25.04.2024 minor girl’s mother said that she
wanted alive baby & she wanted to give live baby
to her relative for adoption. Thus we noticed that the
mother of the said girl was changing her statements.
3. On 26.04.2024 the mother of the girl said in front of
Medical team that she wants termination of pregnancy
after the baby’s heart is stopped by injecting medicine
in the heart.
4. Hence, due to the changing statements made by
the girl’s parents and the fact that the sonography
done at our hospital on 25.04.2024 reveled 30.2
weeks with baby weight of 1593grams, we humbly
request Hon. Supreme Court of India to guide us
whether
(1) The baby should be delivered alive.
OR
(2) After injecting intracardiac injection KCL to end
the life of the fetus in utero as per
a. The Government of India guidelines MOHFW D.O
No. M. 12015/58/2017- MCH dated 14.08.2017, vide
section Ve (Copy attached).
b. जाा.क्र. रााकुु ककाा/पीीसीीपीीएनडीीटीी/कक्ष ८ ड/नस्तीी क्र. ५०७/२० आठवडयाापलि�कडीील
वैदयकीय
् गर््भपात/मा. उच्च न्यायालय आदेश / स्थायी वैदयकीय ् मं डळ व मान्यता
प्राप्त वैदयकीय
् गर््भपात केें द््राांनी अनुसरावयाची कार््यमार््गदर््शक तत्वे (SOPs) /
दिनांक ०:- १८.०१.२०२०. vide section IVc (Copy attached)
5. We are ready to do the termination of pregnancy as
per the directives of the Hon. Supreme Court of India.
If the baby is born alive, we are ready to keep the
482 [2024] 5 S.C.R.

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baby in the Neonatal Intensive Care Unit if required
under the care of neonatologist.”
11. On the communication being drawn to the attention of the Registrar
(Judicial – I), the proceedings were listed before the Court on 29
April 2024, which was the first available working day.
12. In view of the communication of the Dean at Sion hospital, we
had the benefit of hearing submissions of counsel again. We
considered it appropriate to thereafter interact with the parents of
‘X’ as well as with the medical team at Sion hospital. We have had
an elaborate discussion with the medical team consisting of Dr Arun
H Nayak, Professor and Head of the Department of Obstetrics and
Gynecology and Dr Amarjeet Kaur Bava, Associate Professor and
Unit Chief, Department of Obstetrics and Gynecology, over the video
conferencing platform.
13. Dr Arun H Nayak has indicated that after the order of this Court dated
22 April 2024, the medical team followed requisite procedures by
carrying out medical investigations and seeking the consent of the
parents. According to the medical team, while initially the parents were
agreeable to the stoppage of the fetal heart on 24 April 2024, on 25
April 2024 the appellant stated that she desires that the pregnancy
be taken to term and that she would thereafter give the child in
adoption. Subsequently, on 26 April 2024, the appellant stated that
she desired a termination of pregnancy.
14. The doctors stated that in view of the changing views of the appellant
and her spouse and the above background, they had moved the
Additional Solicitor General with a communication dated 26 April
2024 of the Dean of the Sion hospital, as extracted above. Dr
Nayak and Dr Bava have stated that in terms of the guidelines
of the Union Government dated 14 August 2017, medical steps
would have to be taken by giving an intracardiac injection, KCL,
to end the life of the fetus in utero. An SOP has also been issued
by the State Government on 18 January 2020. The doctors have
stated that the pregnancy of the minor is at an advanced stage.
In terms of the applicable guidelines, an intracardiac injection of
KCL has to be administered and if the fetal heart is not detected
to have stopped after sonography following the administration of
the injection, the procedure would have to be repeated. Both the
doctors have indicated that this may involve a certain degree of
[2024] 5 S.C.R. 483

A (Mother of X) v. State of Maharashtra & Anr.

risk to the minor which cannot be ruled out bearing in mind the late
stage of the pregnancy.
15. The parents of ‘X’ have conversed with the doctors and with the
Court on the video conferencing platform in Hindi. Their primary
concern was that they should have been apprised a week ago by
the medical team after the order of this Court was passed of the
inherent dangers in carrying out the procedure in an advanced
pregnancy. We appreciate the concerns of the parents and their
anguish, particularly having regard to the backdrop in which the
pregnancy is stated to have arisen. The issue is about the way
forward at the present stage.
16. During the course of the conversation online, the doctors have
deliberated on whether a delivery can be induced at this stage.
However, both the doctors ruled out such a course of action bearing
in mind that inducing a delivery at this stage may have real risks of
a deformed child as a result of the premature birth. The situation
has been duly explained to the parents of the minor.
17. It has emerged during the course of the discussion that both the
parents of ‘X’ are averse to undertaking any risk to the life and
well-being of their daughter at this stage and would prefer to take
her home and to readmit her to the Sion hospital in time for her
due date of delivery. During the course of the discussion, Dr Bava
indicated to the parents that Sion hospital is ready and willing to
let ‘X’ be in the care of the hospital from now until the date of the
delivery. However, the father of the minor has specifically stated
the he would prefer to take the minor home where she would be
in more congenial surroundings with the members of her family.
The doctors have indicated to the father and the mother that they
should bring the minor back to the hospital for regular antenatal
checkups.
18. This Court by its earlier order had authorized the medical team at
the Sion hospital to carry out the termination of pregnancy. The
reasons on the basis of which such a course was adopted have
been elaborated upon in the earlier order, which is extracted above.
Even when the Court passed the order on the previous occasion,
the minor was in the thirtieth week of her pregnancy. She is now
nearing the end of the thirty first week of pregnancy.
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19. The sole and only consideration which must weigh with the Court at
this stage is the safety and welfare of the minor. We are conscious
of the trauma which the minor will face in having to continue the
pregnancy for approximately five weeks, if the course of action which
has been suggested by her parents is accepted. The Court has been
informed that the minor is ready and willing to accept the decision
of her parents which is in her best interest. Performing a procedure
for termination of an advanced pregnancy at this stage is subject to
risks involving the well-being and safety of the minor as explained
by the medical team at Sion hospital. Bearing in mind the detailed
discussion which took place, the parents of the minor have chosen
not to press ahead with the termination of the advanced pregnancy
at the present point of time. This decision, should, in our view, be
accepted bearing in mind all that has been set out in the earlier part
of this order. As a consequence, the earlier order of this Court dated
22 April 2024 shall stand recalled.
20. Before parting with this judgment we would like to shed light on two
issues which have caught our attention in these proceedings. First,
the opinion of the medical board constituted under the MTP Act must
reflect the effect of the pregnancy on the pregnant person’s physical
and mental health. Second, the MTP Act and the reproductive right
of a pregnant person gives primacy to their consent.
Role of the RMP and medical board under the MTP Act
21. In X v. State (NCT of Delhi),4 a three-judge bench of this Court had
recognised that the fear of prosecution among registered medical
practitioners5 is a barrier for pregnant persons6 to access safe
and legal abortions. The opinion of the RMP is decisive in matters
of termination of pregnancy under the MTP Act. The purpose of
the opinion of the RMP borrows from the legislative intent of the
MTP Act which is to protect the health of a pregnant person and
facilitate safe, hygienic, and legal abortion. The right to abortion is
a concomitant right of dignity, autonomy and reproductive choice.
This right is guaranteed under Article 21 of the Constitution. The

4 [2022] 7 SCR 686 : (2023) 9 SCC 433
5 “RMP”
6 We use the term ‘pregnant person’ and recognize that in addition to cisgender women, pregnancy can
also be experienced by some non-binary people and transgender men among other gender identities.
[2024] 5 S.C.R. 485

A (Mother of X) v. State of Maharashtra & Anr.

decision to terminate pregnancy is deeply personal for any person.
The choice exercised by a pregnant person is not merely about their
reproductive freedom but also about their agency as recognised by
this court in X v. State (NCT of Delhi).7 It is therefore imperative
that the fundamental right of a pregnant person is not compromised
for reasons other than to protect the physical and mental health of
the pregnant person.
22. Section 3(1) of the MTP Act protects the registered medical practitioner
from penal provisions against abortion, under the Indian Penal Code,8
if it is carried out as per the MTP Act. Moreover, no penalty may
be attracted to a RMP merely for forming an opinion, in good faith,
on whether a pregnancy may be terminated. This is because the
MTP Act requires and empowers the RMP to form such an opinion.
Its bona fide assured, no aspersions may be cast on the RMP. The
same applies to medical boards constituted under Section 3(2-C)
and Section 3(2-D) of the MTP Act.
23. The opinion of the RMP or the medical board, as the case may be,
is indispensable under the scheme of the MTP Act. This inadvertently
gives the power to the RMP or the medical board to stand in the
way of a pregnant person exercising their choice to terminate the
pregnancy. When there is fear or apprehension in the mind of the
RMP or the medical board it directly jeopardises the fundamental
freedoms of pregnant persons guaranteed under the Constitution.
However, the scheme of the MTP Act and the steady line of
application of the law by the courts has made it clear that the RMP
or the medical board cannot be prosecuted for any act done under
the MTP Act in good faith.
24. In the present case, the medical board of the Grant Government
Medical College & Sir JJ Group of Hospitals, Mumbai had prepared
a report dated 28 March 2024 stating that the pregnancy may be
terminated in view of the physical and mental health of ‘X’. The
report however sought the permission of the High Court since the
gestational age of the fetus was above twenty four weeks, which
is the permissible age for termination of pregnancy under the MTP
Act. What is inexplicable is the diametrically opposite view taken

7 [2022] 7 SCR 686 : (2023) 9 SCC 433
8 “IPC”
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by the medical board in its ‘clarificatory’ opinion dated 3 April 2024.
As we have noted above, the medical board issued a clarification
without re-examining ‘X’. Moreover, the opinion did not elaborate on
the change in circumstances which prompted the board to issue a
clarification on its earlier opinion.
25. From a perusal of the MTP Act, its statement of object and reasons as
well as the recommendation of the Shah Committee which examined
the issue of liberalising abortion laws in India,9 two clear postulates
emerge as to the legislative intent of the MTP Act. Firstly, the health
of the woman is paramount. This includes the risk avoided from the
woman not availing unsafe and illegal methods of abortion. Secondly,
disallowing termination does not stop abortions, it only stops safe
and accessible abortions. The opinion of the RMP and the medical
board must balance the legislative mandate of the MTP Act and the
fundamental right of the pregnant person seeking a termination of
the pregnancy. However, as noticed above and by this Court in X v.
State (NCT of Delhi)10 the fear of prosecution among RMPs acts as
a barrier for pregnant people in accessing safe abortion. Further, since
the MTP Act only allows abortion beyond twenty four weeks if the fetus
is diagnosed with substantial abnormalities, the medical board opines
against termination of pregnancy merely by stating that the threshold
under Section 3(2-B) of the MTP Act is not satisfied. The clarificatory
report dated 3 April 2024 fell into this error by denying termination on
the ground that the gestational age of the fetus is above twenty-four
weeks and there are no congenital abnormalities in the fetus.
26. The report failed to form an opinion on the impact of the pregnancy
on the physical and mental health of the pregnant person. If a
pregnant person meets the condition under Section 3(2-B) of the MTP
Act then there would be no need for any permission by the courts.
Therefore, whenever a pregnant person approaches the High Court
or this Court, it is imperative for the medical board to opine on the
physical and mental health of the pregnant person. This court in XYZ
v. State of Gujarat,11 held that the medical board or the High Court
cannot refuse abortion merely on the ground that the gestational

9 Report of the Committee to Study the Question of Legislation of Abortion, Ministry of Health and Family
Planning, Government of India, dated December 1966.
10 [2022] 7 SCR 686 : (2023) 9 SCC 433
11 2023 SCC OnLine SC 1573
[2024] 5 S.C.R. 487

A (Mother of X) v. State of Maharashtra & Anr.

age of the pregnancy is above the statutory prescription. In light of
the peculiar circumstances of that case where the pregnancy was
detrimental to the physical and mental health of the pregnant person,
this Court held that:
“10. We find that in the absence of even noticing the
aforesaid portion of the report, the High Court was not right
in simply holding that “the age of the foetus is almost 27
weeks as on 17.08.2023 and considering the statements
made by the learned advocate for the petitioner-victim
and the averments made in the application the petition for
medical termination of pregnancy stands rejected”, which,
in our view is ex facie contradictory...
…
19. The whole object of preferring a Writ Petition under
Article 226 of the Constitution of India is to engage with
the extraordinary discretionary jurisdiction of the High
Court in exercise of its constitutional power. Such a power
is vested with the constitutional courts and discretion has
to be exercised judiciously and having regard to the facts
of the case and by taking into consideration the relevant
facts while leaving out irrelevant considerations and not
vice versa.”
27. The powers vested under the Constitution in the High Court and this
Court allow them to enforce fundamental rights guaranteed under
Part III of the Constitution. When a person approaches the court for
permission to terminate a pregnancy, the courts apply their mind to
the case and make a decision to protect the physical and mental
health of the pregnant person. In doing so the court relies on the
opinion of the medical board constituted under the MTP Act for their
medical expertise. The court would thereafter apply their judicial
mind to the opinion of the medical board. Therefore, the medical
board cannot merely state that the grounds under Section 3(2-B)
of the MTP Act are not met. The exercise of the jurisdiction of the
courts would be affected if they did not have the advantage of the
medical opinion of the board as to the risk involved to the physical
and mental health of the pregnant person. Therefore, a medical
board must examine the pregnant person and opine on the aspect
of the risk to their physical and mental health.
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28. The MTP Act has removed the restriction on the length of the
pregnancy for termination in only two instances. Section 5 of the MTP
Act prescribes that a pregnancy may be terminated, regardless of the
gestational age, if the medical practitioner is of the opinion formed in
good faith that the termination is immediately necessary to save the
life of the pregnant person. Section 3(2-B) of the Act stipulates that
no limit shall apply on the length of the pregnancy for terminating a
fetus with substantial abnormalities. The legislation has made a value
judgment in Section 3(2-B) of the Act, that a substantially abnormal
fetus would be more injurious to the mental and physical health of a
woman than any other circumstance. In this case, the circumstance
against which the provision is comparable is rape of a minor. To deny
the same enabling provision of the law would appear prima facie
unreasonable and arbitrary. The value judgment of the legislation
does not appear to be based on scientific parameters but rather
on a notion that a substantially abnormal fetus will inflict the most
aggravated form of injury to the pregnant person. This formed the
basis for this Court to exercise its powers and allow the termination of
pregnancy in its order dated 22 April 2024. The provision is arguably
suspect on the ground that it unreasonably alters the autonomy of a
person by classifying a substantially abnormal fetus differently than
instances such as incest or rape. This issue may be examined in
an appropriate proceeding should it become necessary.
29. Moreover, we are conscious of the fact that the decision to terminate
pregnancy is one which a person takes seriously. The guidelines to
terminate pregnancy as well as the scheme of the MTP Act show
the seriousness attached to the well-being of the pregnant person
throughout the process envisaged under the MTP Act. Change in the
opinion of the medical board may cause undue trauma and exertion
to a pregnant person whose mental health is understandably under
distress. While we understand the need for a medical board to issue
a clarificatory opinion based on the facts and circumstances of each
case, the board must explain the reasons for the issuance of the
clarification and, in particular, if their opinion has changed from the
earlier report. Pregnant persons seeking termination of pregnancy
seek predictability for their future. The uncertainty caused by changing
opinions of the medical board must therefore balance the distress it
would cause to the pregnant person by providing cogent and sound
reasons.
[2024] 5 S.C.R. 489

A (Mother of X) v. State of Maharashtra & Anr.

30. The opinion of the pregnant person must be given primacy in evaluating
the foreseeable environment of the person under Section 3(3) of
the MTP Act.12 In Z v. State of Bihar,13 this Court found that the
state authorities had failed in not terminating the pregnancy before
the passage of twenty weeks which was permissible under the law.
While a pregnancy beyond the statutory prescription would require
the intervention of a constitutional court, the vitality of time sensitivity
was recognised by this Court. ‘X’ was taken for termination of her
pregnancy at the gestational age of twenty-five weeks in the present
case. The passage of time in seeking the permission of this Court after
being unsuccessful before the High Court matured the gestational
age of the fetus to almost twenty-nine weeks. This increased the risk
involved in ending the pregnancy of ‘X’ inducing the voluntary change
of opinion by ‘X’ and her parents to take the pregnancy to term.
31. This highlights the need for giving primacy to the fundamental rights
to reproductive autonomy, dignity and privacy of the pregnant person
by the medical board and the courts. The delays caused by a change
in the opinion of the medical board or the procedures of the court
must not frustrate the fundamental rights of pregnant people. We
therefore hold that the medical board evaluating a pregnant person
with a gestational age above twenty-four weeks must opine on the
physical and mental health of the person by furnishing full details
to the court.
Primacy of the pregnant person’s consent in abortion
32. As noted above, the order of this court allowing ‘X’ to terminate her
pregnancy is recalled. This decision is made in light of the decisional
and bodily autonomy of the pregnant person and her parents. The
MTP Act does not allow any interference with the personal choice of
a pregnant person in terms of proceeding with the termination. The
Act or indeed the jurisprudence around abortion developed by the
courts leave no scope for interference by the family or the partner
of a pregnant person in matters of reproductive choice.
33. As stated above, the role of the RMPs and the medical board must
be in a manner which allows the pregnant person to freely exercise

12 X v. State (NCT of Delhi) [2022] 7 SCR 686 : (2023) 9 SCC 433
13 [2017] 8 SCR 212 : (2018) 11 SCC 572
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their choice. In the present case, the guardians of ‘X’, namely her
parents, have also consented for taking the pregnancy to term. This
is permissible as ‘X’ is a minor and the consent of the guardian is
prescribed under Section 3(4)(a) of the MTP Act.
34. In Suchita Srivastava v. Chandigarh Admn.14, a three-judge Bench
of this Court has held that the right to make reproductive choices is
a facet of Article 21 of the Constitution. Further, the consent of the
pregnant person in matters of reproductive choices and abortion is
paramount. The purport of this Court’s decision in Suchita Srivastava
(supra) was to protect the right to abortion on a firm footing as an
intrinsic element of the fundamental rights to privacy, dignity and
bodily integrity as well as to reaffirm that matters of sexual and
reproductive choices belong to the individual alone. In rejecting the
State’s jurisdiction as the parens patriae of the pregnant person,
this Court held that no entity, even if it is the State, can speak on
behalf of a pregnant person and usurp her consent. The choice to
continue pregnancy to term, regardless of the court having allowed
termination of the pregnancy, belongs to the individual alone.
35. In the present case the view of ‘X’ and her parents to take the
pregnancy to term are in tandem. The right to choose and reproductive
freedom is a fundamental right under Article 21 of the Constitution.
Therefore, where the opinion of a minor pregnant person differs
from the guardian, the court must regard the view of the pregnant
person as an important factor while deciding the termination of the
pregnancy.
Conclusion
36. In the facts and circumstances of this case, we issue the following
directions:
(i) The Sion hospital shall bear all the expenses in regard to the
hospitalization of the minor over the past week and in respect
of her re-admission to the hospital for delivery as and when
she is required to do so; and
(ii) In the event that the minor and her parents desire to give the child
in adoption after the delivery, the State Government shall take

14 [2009] 13 SCR 989 : (2009) 9 SCC 1
[2024] 5 S.C.R. 491

A (Mother of X) v. State of Maharashtra & Anr.

all necessary steps in accordance with the applicable provisions
of law to facilitate this exercise. This shall not be construed as
a direction of this Court binding either the parents or the minor
and the State shall abide by the wishes as expressed at the
appropriate stage.
37. In light of the issues which arose before this Court we record our
conclusions as follows:
(i) The MTP Act protects the RMP and the medical boards when
they form an opinion in good faith as to the termination of
pregnancy;
(ii) The medical board, in forming its opinion on the termination of
pregnancies must not restrict itself to the criteria under Section
3(2-B) of the MTP Act but must also evaluate the physical and
emotional well being of the pregnant person in terms of the
judgment;
(iii) When issuing a clarificatory opinion the medical board must
provide sound and cogent reasons for any change in opinion
and circumstances; and
(iv) The consent of a pregnant person in decisions of reproductive
autonomy and termination of pregnancy is paramount. In case
there is a divergence in the opinion of a pregnant person and
her guardian, the opinion of the minor or mentally ill pregnant
person must be taken into consideration as an important aspect
in enabling the court to arrive at a just conclusion.
38. In view of the above, the appeal is disposed of. There shall be no
order as to costs.
39. Pending application(s), if any, disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:
Appeal disposed of.