Gestation

Introduction

“Gestation” in law is not merely a biological period; it is a legal fact with immediate consequences across criminal law, medical regulation, family law, assisted reproduction and evidence. In the Indian context, the precise number of weeks of gestation can determine whether a pregnancy may be lawfully terminated, whether a third party may be criminally charged for causing miscarriage, whether a child is conclusively presumed to be legitimate, or whether a surrogacy arrangement is permissible. For practitioners, an accurate grasp of how courts and statutes treat gestational age — and what proof is accepted in court — is essential to case strategy, drafting and client counselling.

Core Legal Framework

Primary statutes and provisions where gestation has legal force:

• Medical Termination of Pregnancy Act, 1971 (as amended 2021)
• Section 3 (conditions when a pregnancy may be terminated by a Registered Medical Practitioner) remains the operative provision. The 2021 amendment expanded grounds and gestational thresholds: broadly, earlier limits of 20 weeks were relaxed up to 24 weeks for certain categories; the amendment also creates a mechanism (medical board) to consider termination beyond the statutory ceiling in cases of substantial fetal abnormalities. Practitioners must read Section 3 together with rules framed under the Act and the 2021 amendment enabling frameworks for medical boards and classifications of special categories.
• Indian Penal Code, 1860 — Offences relating to miscarriage and the unborn:
• Sections 312–318 (collectively) deal with causing miscarriage, causing miscarriage without woman’s consent, causing a woman’s death by an act intended to cause miscarriage, preventing birth of a viable child, exposure or abandonment of a child, and related offences. These provisions criminalize wrongful interference with gestation and impose varying degrees of punishment depending on consent, intent and consequences.
• Indian Evidence Act, 1872 — Presumption relating to legitimacy:
• Section 112: “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, shall be conclusive proof that he is the legitimate child of that man.” The statutory 280‑day rule is a direct statutory recognition of a standard gestation period for purposes of legitimacy.
• Surrogacy (Regulation) Act, 2021 and Assisted Reproductive Technology (Regulation) Act, 2021
• These Acts regulate surrogacy and assisted reproductive procedures. They define eligibility, prohibit commercial surrogacy, set conditions for surrogate mothers, and require registration/oversight of ART clinics and surrogacy arrangements. Gestational matters—who carries the pregnancy, the health and informed consent of the surrogate throughout the gestation period, and post‑birth parentage orders—are governed by these statutes and their rules.
• Protection of Children from Sexual Offences Act, 2012 (POCSO)
• Where a minor is impregnated, POCSO’s mandatory reporting and special procedural safeguards intersect with gestation and decisions on termination; MTP obligations must be read alongside POCSO duties.

Practical Application and Nuances

How gestational age is determined and used in practice
– Primary methods of proof: Last menstrual period (LMP) records; ultrasound (first‑trimester crown‑rump length is the most accurate ); medical records from antenatal clinics; hospital/clinic registration records; obstetric notes; and where needed, expert evidence from obstetricians/radiologists. Courts give greatest weight to contemporaneous medical records and certified ultrasound reports.
– Accuracy and contestation: First‑trimester ultrasound (up to ~13 weeks) is considered reliable to within a few days; second and third trimester measurements become progressively less precise. Where LMP and scan conflict, courts have preferred ultrasound evidence, especially if time‑stamped and by a qualified radiologist. Anticipate adversarial attacks on dating methods — e.g., poor record‑keeping, undocumented scans, or retrospective affidavits — and be prepared to produce chain of custody and originals.

Medical Termination of Pregnancy (MTP) practice
– Statutory ceiling matters: Whether a pregnancy falls within the permissible window under the MTP Act (20 weeks historically, relevant categories extended to 24 weeks by amendment and with a medical board for exceptional cases) will usually be the threshold issue in MTP petitions. Always compute gestational age precisely (in weeks and days) from LMP and corroborate with the earliest available ultrasound.
– Procedural compliance: Obtain and file (1) RMP(s) opinion(s) in the statutory format; (2) informed consent of the woman (and if minor, consent of guardian where required); (3) pregnancy test/USG reports; (4) counselling records. Missing procedural formalities are a frequent ground for prosecution or for adverse rulings.
– When beyond the statutory limit: Use the medical board mechanism (created by the 2021 amendment) for cases of fetal abnormality or serious health risk. If administrative avenues delay life‑saving care, file urgent writs (Article 226/32) emphasizing life and dignity under Puttaswamy (privacy and bodily autonomy) and Suchita Srivastava (reproductive autonomy) principles.

Criminal law: IPC offences and defences
– Prosecutorial elements: For offences under IPC 312 et seq., prosecution must prove causation (act caused miscarriage), voluntariness, intent or knowledge where required, and absence of lawful justification (e.g., MTP compliance). Demonstrate chain of causation with contemporaneous medical records.
– Defences commonly raised:
– Lawful medical termination under MTP: If the termination was performed by a registered medical practitioner within statutory requirements, that answers criminal allegations.
– Consent: The woman’s consent (and genuineness thereof) can be pivotal; but note that consent obtained by coercion or in minors is legally problematic.
– Medical necessity: Where a procedure was necessary to save the woman’s life, defence counsel must marshal treating doctors’ affidavits and records.

Family law and legitimacy disputes
– Section 112 presumptions: Where a child is born within marriage or within 280 days after its dissolution, legitimacy is conclusively presumed; disproving that presumption is difficult. A practitioner challenging legitimacy must rely on medical proof that gestation exceeded the statutory period (e.g., credible evidence of a longer pre‑conception interval, expert obstetric evidence).
– Maintenance, custody and adoption: Gestational evidence may influence parentage claims in surrogacy or assisted reproduction disputes; appropriate pre‑ and post‑delivery documentation (surrogacy agreements, ART records) is critical.

Surrogacy and assisted reproduction practice
– Documentation through gestation: Surrogacy matters require rigorous documentation of the surrogate’s health during pregnancy, informed consent, counselling records, and compliance with surrogacy/ART rules. Courts will look at antenatal records, prescribed counselling, and the surrogate’s voluntary consent to be transferred to commissioning parents post‑birth.
– Parentage disputes: In absence of statutory clarity previously, courts have issued ad hoc orders (e.g., Baby Manji Yamada). Under present statutory regime, ensure compliance with registration of ART clinics, surrogate eligibility rules, and application for parentage orders as required.

Concrete examples
– MTP petition: Practically, a counsel filing an urgent MTP petition should compute gestation from LMP, obtain a certified ultrasound (with image, report and radiologist signature), two RMP opinions if required by gestational age, and an affidavit of the woman, then seek immediate interim medical permission while the writ is heard.
– Criminal defence: In a prosecution under IPC 312, defence counsel should obtain the original hospital records, the treating obstetrician’s affidavit explaining whether the act was a lawful MTP, and challenge forensic causation where the alleged act predates the miscarriage by several weeks.
– Legitimacy contest: In a paternity dispute where the husband claims the child was conceived after separation, the practitioner should procure obstetric records that establish date of conception and correlate with cohabitation dates to rebut or reinforce Section 112 presumption.

Landmark Judgments

• Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1
• Principle: The Supreme Court reaffirmed reproductive autonomy and emphasised that the right to make reproductive choices forms part of personal liberty. It held that the MTP Act must be interpreted in light of the woman’s autonomy and health; courts should not substitute their own views for the medical opinion of competent practitioners except in exceptional cases. For practitioners, Suchita is the leading authority to argue for procedural deference to RMPs and for reproductive choice as an aspect of bodily autonomy.
• Baby Manji Yamada v. Union of India, (2008) 13 SCC 518 (Supreme Court)
• Principle: The Court confronted the legal vacuum around international surrogacy arrangements and provided pragmatic relief by recognizing commissioning parents’ interests and issuing provisional guardianship. The case highlights that where statutory regulation is lacking or nascent, courts will fashion relief balancing child welfare and parental expectations. For counsel in surrogacy litigation, Baby Manji underscores the court’s focus on the child’s welfare and the necessity of documentary proof of gestation and commissioning arrangements.

Strategic Considerations for Practitioners

1. Front‑load medical proof
2. Always obtain and tender contemporaneous medical documents: early ultrasound report with DICOM if possible, antenatal cards, labour room entry sheets, date‑stamped clinic receipts. Courts give primacy to early, contemporaneous records.
3. Specialist affidavits
4. Use brief, pointed affidavits from treating obstetricians/radiologists that (a) state gestational age methodology used; (b) note LMP and ultrasound readings; (c) set out clinical urgency and recommended management. Where gestational dating is disputed, an expert affidavit explaining the relative reliability of methods is persuasive.
5. MTP pleadings — format and speed
6. Prepare the statutory opinion(s) in the prescribed or standardised format used by medical councils. For urgent MTP beyond local hospital capacity, seek transfer orders and temporary relief from High Court under Article 226/32 to avoid delay that would change gestational eligibility.
7. Criminal defence — attack causation and intent
8. Where accused is charged under IPC provisions relating to miscarriage, test the prosecution’s medical evidence on causation, timing and intent. Is the alleged fatal or abortifacient instrumentisation contemporaneous with the miscarriage? Were timely medical admissions made? Emphasize lawful MTP compliance, the woman’s consent, and alternate causation (medical complications).
9. Surrogacy compliance
10. For commissioning parents and clinics: ensure registry compliance, written informed consent of surrogate, insurance during gestation, and counselling records. Courts scrutinise gestational records to rule on parentage; absence of proper documentation can be fatal.
11. POCSO and minors
12. If the pregnant woman is a minor, practitioners must navigate the interplay between MTP requirements and mandatory reporting under POCSO. Counsel and law officers should coordinate to protect the minor’s health while fulfilling statutory duties — anticipate the court’s sensitivity and privacy concerns.
13. Don’t litigate avoidable technicalities
14. Where statutory procedures in MTP have been substantially complied with and the woman’s health is at risk, courts are reluctant to deny relief on minor procedural lapses. Use this principle to argue for interim medical relief while procedural deficiencies are remedied.

Common pitfalls to avoid
– Relying solely on retrospective affidavits to establish gestational age.
– Failing to obtain proper RMP qualifications and stamps on medical opinions for MTP petitions.
– Ignoring mandatory counselling or surrogate consent requirements under surrogacy/ART laws.
– Overlooking POCSO obligations when representing minors — failing to report or to seek appropriate child welfare interventions can expose counsel/clinicians to criticism.
– Treating Section 112 as easily rebuttable — the 280‑day presumption is conclusive and requires strong medical proof to dislodge.

Conclusion

Gestation sits at the intersection of medicine and law; the number of weeks can determine legality, criminality, parentage and dignity. For the courtroom practitioner, mastery over the evidentiary tests for gestational age (early ultrasound + contemporaneous records), strict procedural compliance under the MTP and surrogacy regimes, and the ability to couple medico‑legal proof with constitutional arguments about autonomy (Puttaswamy) and dignity (Suchita Srivastava) will decide outcomes. Always approach gestation‑sensitive matters with urgency, precise medical documentation, and knot‑tight statutory compliance — those practical steps convert medical weeks into clear legal positions.