NEW DELHI: The Supreme Court will adjudicate on Tuesday ( September 15) a PIL filed by a doctor over the alleged violation of the right to life of premature babies delivered following medical termination of pregnancy (MTP) in advanced pregnancies allowed by orders of superior courts, including in cases involving rape victims, minors, major foetal anomalies and mental illness.
The PIL, filed before the top court by Dr Sanjay Kulshrestha, a paediatric surgeon in Agra, seeks appropriate orders and directions to the Union of India and other authorities to amend the present MTP Act, 1971. He has also sought directions to ensure that the rights of mothers as well as premature babies are protected and accommodated under the MTP Act by framing basic guidelines or a standard operating procedure (SOP) for the treatment of such babies.
"Issue a writ of mandamus under Articles 21. 32. 12 and 14 and 142 of the constitution of India against the respondents (UOI and others) in order to protect the right to life of some unfortunate premature babies that are being delivered in late pregnancies of more than 24 weeks due to some unusual circumstances where mother is allowed to undergo a medical termination of pregnancy by the order of the Superior Courts [especially for cases where there is no apparent anomaly in the fetus), a proper medical care of such unfortunate premature babies to be ensured by treating hospitals," the plea of Dr Kulshrestha said.
The petitioner added that the Lucknow Bench of the Allahabad High Court, in an order dated March 21, 2026, held that an unborn child of more than five months' gestation would be treated as a 'person' in the eyes of law and that its death in an accident would entitle the family to separate compensation. The court held that a foetus beyond a certain stage of development acquires the status of an independent life.
The plea also quoted an earlier Supreme Court order, in which the court said cases of unwanted pregnancy, particularly involving minors, were on the rise. The Supreme Court had on May 30, 2026, said the law regulating termination of pregnancy needed to be amended to deal with such cases.
The Bench had said, "It's not easy for us here. There is nobody who is winning and nobody is losing this. But then we have to take a decision without emotion. There is a lacuna in the law or tendency in society. Somebody has to answer it."
Considering the practical problems regarding legal decisions and biological realities, the Additional Solicitor General (ASG), on May 5, 2026, suggested that the rights of the unborn child should also be considered, in addition to the rights of the mother having such an advanced pregnancy, and hoped that the court would one day examine and recognise that aspect, the plea said.
Keeping in view the fact that in many such cases of MTP in very advanced pregnancies, the foetus is well developed enough to have an independent existence, the plea said the rights of such premature babies should also be accommodated, in addition to the rights of mothers, while courts pass orders directing treating doctors and the state.
The petitioner, Dr Kulshrestha, is a senior paediatric surgeon involved in the management of premature babies and those with congenital anomalies and is concerned about the plight of such premature babies.
"These babies are capable of making an independent existence in in the world and with some initial support they may survive to lead a normal life. However, owing to a premature delivery and in the absence of SOP or clear directions in Court's order for baby's management, these babies may face threat to their life or struggle for their lives. This hostile way of welcoming our tiny human beings, who are going to be the future of country, is certainly a violation of their right to life. Since only superior courts are authorized in such matters of granting permission for MTP beyond 24 weeks, petitioner has approached this court," the plea said.
Under the MTP Act, 1971, as amended in 2021, the legal limit for MTP was extended from 20 weeks to 24 weeks. Beyond 24 weeks, MTP is not allowed except in certain rare circumstances, such as cases involving rape victims or major congenital anomalies, where termination may be permitted only with the permission of a court, he contended.
Dr Kulshrestha said that although the amended MTP Act of 2021 contains clear guidelines regarding the management of such medical terminations for mothers, there are no guidelines for babies delivered following MTP in advanced pregnancies. He said there were examples where superior courts had permitted termination at 28 or even 30 weeks of pregnancy, and a considerable number of such babies may not survive where courts have not issued clear additional directions to the state regarding their care.
