Bombay HC lets minor survivor end 28-week pregnancy, orders State to protect a child born alive
A Division Bench of Justice Advait M. Sethna and Justice Ranjitsinha Raja Bhonsale permitted the termination under the MTP Act, followed a February 2026 Supreme Court ruling, and said the State must care for the child if it is born alive or the survivor chooses adoption.
The Medical Termination of Pregnancy rules let a sexual assault survivor or a minor seek termination up to 24 weeks. On 9 November 2026 the Bombay High Court allowed a minor survivor to end a pregnancy of about 28 weeks, after the girl told the judges in chambers that she would not continue it under any circumstances.
The Division Bench, sitting as a vacation court, did not stop at permission. It added that a child born alive after the procedure must not be “neglected or left to perish” and that the State takes full responsibility if the family cannot, or the survivor chooses adoption.
Because the case concerns a minor survivor of sexual assault, this report does not name her, her family or any place or institution connected with them. The court itself titled the petition XYZ and Another v. State of Maharashtra and Others.
A vacation bench and a sealed report
The petition was filed in the first week of November 2026 by the minor and a parent. They sought termination of a pregnancy then put at 27 weeks and 4 days, relying on reproductive autonomy and on the fact that the statutory time limit had passed.
On 4 November the court asked for a medical board examination at a government hospital group. Because of the Diwali vacation, it listed the matter before the Division Bench of Justice Advait Sethna, which was sitting on 6, 9 and 10 November.
On 6 November the State said the survivor had reported to the hospital only the previous evening. The examination was under way, and the board’s report would come in a sealed cover on 9 November.
That morning the sealed report was opened in court and shared with both sides. Counsel for the survivor asked for time to read it and speak to the family, so the bench rose and sat again in chambers at 3:30 p.m., with the girl and her parents present.
What the medical board said
The board had six specialists, from obstetrics, paediatrics, psychiatry, radiology, medicine and anaesthesia. It recorded the pregnancy at 28 weeks and found no lethal congenital anomaly.
Because the pregnancy had crossed 24 weeks without such an anomaly, the board said permitting termination was beyond its remit. It added that the procedure could be performed if the High Court so directed, given the possibility of grave and irreparable harm to the survivor’s psychological health.
The board also warned that if the pregnancy was ended now, the foetus might be born alive and need neonatal intensive care, with significant illness and risk of death. It recorded that the survivor and her relatives had been told this and had accepted it.
The psychiatrist’s view, as the court summarised it, was that the survivor wanted termination because she was under age and worried about her future and the baby’s. She was certified fit from the psychiatric side.
Two counsel, one request for a considered order
Ms Kanchan Pawar, legal aid counsel for the petitioners, argued that the girl was neither mentally nor physically ready to bear a child and that the pregnancy continued against her wishes.
She relied on the right to live with dignity, including sexual and reproductive freedom, under Article 21, and on Section 3(2)(b) read with Section 5 of the MTP Act, 1971.
Ms M. P. Thakur, AGP, appeared for the State. She relied on the board’s report of 9 November and asked the court to pass an appropriate order after considering it.
What the survivor told the judges
The judges said they spoke at length to the survivor and her parents and explained the board’s opinion, including the chance that the child would be born alive. They also explained the alternative of giving the newborn up for adoption.
The parents told the court, in categorical terms, that their financial position and other difficulties meant they could not look after a newborn. They also stressed that the pregnancy was unwarranted and that their daughter had never consented to it.
The survivor, the court recorded, said she did not wish to continue the pregnancy under any circumstances. She was not ready, in mind or body, and the hospital tests had already left her in great distress.
The bench noted that she had detached herself from questions such as whether the child would be healthy or viable. In its view, her condition made the board’s opinion on grave psychological harm directly relevant.
The 24-week line and a Supreme Court answer
The court first looked at the MTP Act, its preamble and scheme. It noted Section 3(2-B), which lifts the time limit where a medical board diagnoses substantial foetal abnormality, and Rule 3-B of the MTP Rules, 2003, which covers survivors of sexual assault, rape or incest and minors up to 24 weeks.
Neither route covered this case, since the pregnancy was about 28 weeks and the board had found no anomaly. The bench turned to the Supreme Court for guidance.
The decision it relied on was A (Mother of X) v. State of Maharashtra and Others, Civil Appeal No. 827 of 2026, decided on 6 February 2026. There the Supreme Court dealt with a 30-week pregnancy in a girl who had conceived as a minor.
It set aside a High Court order that had refused termination on grounds of foetal viability and the possibility of adoption, and directed the hospital to carry out the procedure with all medical safeguards.
The Bench summarised the Supreme Court’s principles as follows. The pregnant woman’s reproductive autonomy and bodily integrity must be given sufficient emphasis over the rights of the unborn foetus, and forcing her to continue an unwarranted pregnancy causes visceral trauma.
Where a woman is determined to terminate and has detached herself from the pregnancy, the child’s health or viability is not relevant. Even if she has turned 18, the Supreme Court held, that does not matter, because she was a minor when she conceived and the pregnancy arose outside marriage.
The High Court found that the ruling applied squarely to the present facts. It said it was bound to follow it with due deference.
Who answers for a child born alive
The court then asked what happens after the procedure if the child is born alive. It relied on a Co-ordinate Bench ruling of 3 April 2019 in XYZ v. Union of India, Writ Petition No. 10835 of 2018.
That ruling held that where a court permits termination and the child is born alive, the medical practitioner and the hospital must take complete responsibility for offering the best available treatment.
If the parents cannot or will not take responsibility, the State and its agency must do so, offering medical support as far as reasonably feasible. The guide is the child’s best interest and the Juvenile Justice (Care and Protection of Children) Act, 2015.
The 2019 Bench had also asked the State to frame a suitable policy for children born alive after termination. The present bench said it agreed completely with those views.
On the child’s position, the bench stated its holding in the negative. Under no circumstances, it said, may a child born alive in this case be:
“neglected or left to perish or completely at the hands of fate” (para 29)
That applies in particular, the court added, where the survivor or her family may not be in a position, or may be unwilling, to take responsibility for the child.
A warning from a Kolhapur case
The judges said they had come across an unfortunate situation in another matter before the Circuit Bench at Kolhapur, XYZ v. State of Maharashtra, Writ Petition (St.) No. 1690 of 2026. A child born alive there was given no treatment for about 11 hours and died.
As the order records, the Secretary-2 of the Public Health Department had recommended action against certain doctors, including a departmental inquiry. The court in that case directed the State to decide whether to lodge an FIR against the doctors.
The bench said it hoped that case was a single, isolated exception that would never recur.
Adoption, and what the State owes
The bench said it was inclined to allow the petition by permitting termination. The order also addresses post-delivery care for the survivor, including neonatal care for the baby if it is required.
If the survivor wants to give the child up for adoption after delivery, the State and its agencies will assume complete responsibility for the child. They are to take the steps needed to rehabilitate the child, including placement in foster care or adoption, following due legal process.
The court then clarified that these observations are not a direction binding the petitioners in any way. It said it hoped the State would respect the wishes expressed at the appropriate stage and, in any case, take due care of the child so that it is not left unattended and abandoned.
Order
The Division Bench allowed the writ petition and made the rule absolute. The survivor may undergo medical termination of her pregnancy under the MTP Act and its Rules, at the government hospital group the order names, which the court said has adequate facilities, following the protocol required by Section 4 of the Act.
The court thanked Ms Pawar and Ms Thakur for acting as officers of the court in a matter that required a balance between facts, law and human feelings. All concerned were to act on an authenticated copy of the order. The judgment was delivered by Justice Advait M. Sethna.