“A woman’s mental health, personal autonomy, and social circumstances are valid grounds for abortion even beyond the statutory 24 week period.” — Bombay High Court (2025, ABC v. State of Maharashtra)
Abstract
Termination of pregnancy beyond 24 weeks remains a contested medico-legal frontier in India, where statutory ceilings under the Medical Termination of Pregnancy Act often collide with urgent ethical and clinical realities. The Bharatiya Nyaya Sanhita (BNS) Section 88, which protects acts done in good faith for the benefit of life of the mother, offers a critical interpretive safeguard for practitioners confronted with cases of severe fetal anomalies, maternal health risks, or profound psychological trauma.
This paper argues for a liberal reading of Section 88, situating good faith and compassionate intent as central to the medico-legal justification for termination beyond statutory limits. By reframing Section 88 as a shield against criminal liability, the analysis harmonizes medical ethics with constitutional guarantees of dignity, autonomy, and reproductive justice. The discussion highlights judicial precedents, ethical imperatives, and policy implications, underscoring the need for courts to adopt purposive interpretations that protect both patients and practitioners. Ultimately, the paper advances a framework where law, medicine, and compassion converge to ensure that no woman or child suffers needless harm due to rigid statutory boundaries.
Q. There are two statutory provisions that permit Medical Termination of Pregnancy.
| Statute | Key Feature | Termination Limit |
|---|---|---|
| MTP Act | Strict mandatory stipulations | Cut-off at 24 weeks |
| BNS Sections 88 & 91 | No statutory gestational limit; must be in “Good Faith to save the life of the mother” | No limit specified |
The BNS does differentiate between early stage of pregnancy and “when the woman is quick with child”. Both the statutory provisions, however, require a competent medical person/s to certify that termination is necessary in the interest of the mother’s life.
There are several compelling circumstances and situations where the mother, ‘quick with a child’, seeks termination of pregnancy beyond 24 weeks of pregnancy. In such cases the woman has to approach the High Court or the Supreme Court to permit abortion in such cases under their exceptional power and jurisdiction. Should not such terminations be permitted under BNS Sec 88 by according a liberal view to the opinion of a competent gynaecologist that in the peculiar circumstances of the case he is of the view ‘ that in good faith he believes it is necessary to save the life of the mother”, according to the liberal interpretation of life beyond just physical existence?
AI Response
Very important medico-legal and ethical question.
Statutory Framework
- MTP Act, 1971 (as amended in 2021)
- Permits termination up to 20 weeks with one doctor’s opinion, and up to 24 weeks with two doctors’ opinion, but only under specific conditions (rape, incest, minors, fetal anomalies, risk to mother’s health, etc.).
- Beyond 24 weeks, termination is not permitted under the Act, except when courts exercise extraordinary jurisdiction.
- Bhartiya Nyaya Sanhita (BNS), Sections 88 & 91Section 88: Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- Explanation.—A woman who causes herself to miscarry, is within the meaning of this section. Section 91: Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
- Applied to pregnancy, this means that if a registered medical practitioner, acting in good faith, believes termination is necessary to save the mother’s life, it is not criminal—even if beyond 24 weeks.
Judicial Practice
- Women approach constitutional courts when termination beyond 24 weeks is sought.
- Court decisions rely on medical board recommendations.
- Courts have interpreted “life of the mother” liberally in cases involving mental health, dignity, and fetal anomalies.
Liberal Interpretation of “Life”
- Physical existence vs. holistic life:
- Narrow reading = only imminent risk of death
- Liberal reading = includes mental health, dignity, avoidance of lifelong trauma, severe fetal abnormalities
- Good faith certification by competent gynecologist could shield termination beyond 24 weeks from criminal liability.
- Aligned with constitutional values (Article 21) and reproductive autonomy.
Practical Implications
- Doctors remain hesitant without judicial approval.
- Judicial or legislative clarification needed.
- Would reduce court dependency and empower healthcare professionals.
Conclusion
Yes, a liberal interpretation of Section 88 BNS could and arguably should permit termination beyond 24 weeks when a competent gynecologist certifies, in good faith, that continuation of pregnancy endangers the mother’s life—not just survival, but her dignity, mental health, and holistic well-being. But until courts or Parliament explicitly affirm this interpretation, doctors remain cautious, and women continue to approach higher courts for relief.
Q. Please draft a model medico-legal argument that could be used in court or policy advocacy to support this liberal interpretation of BNS Section 88?
AI:
Here’s a structured medico-legal argument that can be used in court submissions or policy advocacy to support a liberal interpretation of Section 88 of the Bhartiya Nyaya Sanhita (BNS) for termination of pregnancy beyond 24 weeks:
Model Medico-Legal Argument
I. Statutory Context
| Law | Key Provisions |
|---|---|
| Medical Termination of Pregnancy Act (MTP Act, 1971, amended 2021) | Permits termination up to 24 weeks under specified conditions. Beyond 24 weeks, termination requires judicial intervention. |
| Bhartiya Nyaya Sanhita (BNS), Section 88 | Section 88: Permits Good Faith termination of pregnancy beyond 24weeks to save the life of the mother. |
II. Constitutional Foundation
- Article 21 of the Constitution of India guarantees the right to life and personal liberty.
- The Supreme Court has consistently held that “life” under Article 21 means more than mere animal existence; it includes dignity, mental health, and freedom from suffering (Maneka Gandhi v. Union of India, Suchita Srivastava v. Chandigarh Administration).
- Therefore, “saving the life of the mother” under Section 88 must be interpreted in harmony with Article 21 to include physical survival, mental health, dignity, and avoidance of grave trauma.
III. Judicial Precedents
- Courts have repeatedly permitted termination beyond 24 weeks in exceptional circumstances:
- X v. Union of India (2022): Recognized reproductive autonomy as part of Article 21.
- Murugan Nayakkar v. Union of India (2017): Allowed termination beyond statutory limit due to severe fetal anomaly.
- These cases demonstrate that the judiciary already interprets “life” and “health” broadly, consistent with constitutional values.
IV. Medical Ethics and Good Faith
- The Indian Medical Council Regulations require doctors to act in the best interest of patients.
- A competent gynecologist certifying that continuation of pregnancy gravely endangers the mother’s holistic life acts in good faith.
- Section 88 BNS provides statutory protection for such acts, ensuring doctors are not criminally liable when acting to preserve the mother’s life in its fullest sense.
V. Harmonious Construction
- The MTP Act sets procedural safeguards and time limits.
- The BNS provides a residual safety net for extraordinary cases where strict statutory limits would cause injustice.
Reading both together ensures that:
- Routine cases follow the MTP Act.
- Exceptional cases beyond 24 weeks are protected under Section 88, when undertaken in good faith to save the mother’s life.
VI. Policy and Human Rights Considerations
- India is a signatory to international conventions (CEDAW, ICCPR) that recognize reproductive rights and health as fundamental.
- Denying termination beyond 24 weeks in compelling circumstances forces women into cruel, degrading, and inhuman treatment, violating Article 21 and international obligations.
- A liberal interpretation of Section 88 aligns domestic law with global human rights standards.
VII. Conclusion & Prayer
| Legal Position: | Section 88 BNS, read with Article 21, permits termination beyond 24 weeks when a competent medical practitioner certifies in good faith that continuation endangers the mother’s life in its holistic sense. |
| Policy Recommendation: | Explicit judicial or legislative clarification should affirm this interpretation, reducing dependence on extraordinary court orders. |
| Prayer in Court: | Recognize that “life” under Section 88 includes dignity, mental health, and avoidance of grave suffering. Hold that termination beyond 24 weeks, certified in good faith by competent medical practitioners, is lawful under Section 88 BNS. |
Judicial Practice
- In practice, when termination beyond 24 weeks is sought, women approach the High Courts or Supreme Court. Courts rely on medical boards’ opinions and often permit termination in cases of severe fetal anomalies or grave risk to the mother’s health.
- Courts have interpreted “life of the mother” liberally in some cases, extending it beyond mere survival to include mental health, dignity, and avoidance of grave suffering. For example, in X v. Union of India (2022), the Supreme Court emphasized reproductive autonomy and broadened the scope of “health”.
Liberal Interpretation of “Life”
- Physical existence vs. holistic life:
- A narrow reading means only imminent risk of death.
- A liberal reading includes mental health, dignity, avoidance of lifelong trauma, and severe fetal abnormalities that would devastate the mother’s life.
- Good faith certification: If a competent gynecologist certifies that continuation of pregnancy would gravely endanger the mother’s life in this broader sense, Section 88 could arguably shield the termination from criminal liability.
- This interpretation aligns with constitutional values (Article 21: right to life and personal liberty) and international human rights norms (right to health, reproductive autonomy).
Practical Implications
- Medical boards and courts remain the gatekeepers, because doctors are hesitant to rely solely on BNS provisions without judicial backing—given the risk of prosecution.
- A policy reform or judicial clarification could explicitly recognize that Section 88 permits termination beyond 24 weeks when continuation gravely endangers the mother’s holistic life.
- This would reduce dependence on extraordinary court orders and empower doctors to act decisively in good faith.
Conclusion
Yes, a liberal interpretation of Section 88 BNS could and arguably should permit termination beyond 24 weeks when a competent gynecologist certifies, in good faith, that continuation of pregnancy endangers the mother’s life—not just survival, but her dignity, mental health, and holistic well-being.
But until courts or Parliament explicitly affirm this interpretation, doctors remain cautious, and women continue to approach higher courts for relief.
Q.
Please draft a model medico-legal argument that could be used in court or policy advocacy to support this liberal interpretation of BNS Section 88?
AI:
Here’s a structured medico-legal argument that can be used in court submissions or policy advocacy to support a liberal interpretation of Section 88 of the Bhartiya Nyaya Sanhita (BNS) for termination of pregnancy beyond 24 weeks:
Model Medico-Legal Argument
I. Statutory Context
- Medical Termination of Pregnancy Act (MTP Act, 1971, amended 2021)
- Permits termination up to 24 weeks under specified conditions.
- Beyond 24 weeks, termination requires judicial intervention.
- Bhartiya Nyaya Sanhita (BNS), Sections 88
- Section 88: Permits Good Faith termination of pregnancy beyond 24weeks to save the life of the mother.
II. Constitutional Foundation
- Article 21 of the Constitution of India guarantees the right to life and personal liberty.
- The Supreme Court has consistently held that “life” under Article 21 means more than mere animal existence; it includes dignity, mental health, and freedom from suffering (Maneka Gandhi v. Union of India, Suchita Srivastava v. Chandigarh Administration).
- Therefore, “saving the life of the mother” under Section 88 must be interpreted in harmony with Article 21 to include physical survival, mental health, dignity, and avoidance of grave trauma.
III. Judicial Precedents
- Courts have repeatedly permitted termination beyond 24 weeks in exceptional circumstances:
- X v. Union of India (2022): Recognized reproductive autonomy as part of Article 21.
- Murugan Nayakkar v. Union of India (2017): Allowed termination beyond statutory limit due to severe fetal anomaly.
- These cases demonstrate that the judiciary already interprets “life” and “health” broadly, consistent with constitutional values.
IV. Medical Ethics and Good Faith
- The Indian Medical Council Regulations require doctors to act in the best interest of patients.
- A competent gynecologist certifying that continuation of pregnancy gravely endangers the mother’s holistic life acts in good faith.
- Section 88 BNS provides statutory protection for such acts, ensuring doctors are not criminally liable when acting to preserve the mother’s life in its fullest sense.
V. Harmonious Construction
- The MTP Act sets procedural safeguards and time limits.
- The BNS provides a residual safety net for extraordinary cases where strict statutory limits would cause injustice.
- Reading both together ensures that:
- Routine cases follow the MTP Act.
- Exceptional cases beyond 24 weeks are protected under Section 88, when undertaken in good faith to save the mother’s life.
VI. Policy and Human Rights Considerations
- India is a signatory to international conventions (CEDAW, ICCPR) that recognize reproductive rights and health as fundamental.
- Denying termination beyond 24 weeks in compelling circumstances forces women into cruel, degrading, and inhuman treatment, violating Article 21 and international obligations.
- A liberal interpretation of Section 88 aligns domestic law with global human rights standards.
VII. Conclusion & Prayer
- Legal Position: Section 88 BNS, read with Article 21, permits termination beyond 24 weeks when a competent medical practitioner certifies in good faith that continuation endangers the mother’s life in its holistic sense.
- Policy Recommendation: Explicit judicial or legislative clarification should affirm this interpretation, reducing dependence on extraordinary court orders.
- Prayer in Court:
- Recognize that “life” under Section 88 includes dignity, mental health, and avoidance of grave suffering.
- Hold that termination beyond 24 weeks, certified in good faith by competent medical practitioners, is lawful under Section 88 BNS.
Note: This framework is designed to be court ready and policy advocacy friendly: it ties statutory text to constitutional values, judicial precedent, medical ethics, and international obligations.
Written By: Dr Shri Gopal Kabra
|Bhagwan Mahaveer Cancer Hospital, Jaipur-302017
Email: [email protected], Telephone: 8003516198
