Bombay High Court allows woman to terminate 25-week pregnancy

Bombay High Court (File)

Allowing a 28-year-old woman carrying a 25-week foetus to medically terminate her pregnancy as it was detected with serious neurological and skeletal abnormalities, the Bombay High Court Monday held that she had the fundamental right to “live a life of dignity” and “not a life of misery.”
The woman, a resident of Mumbai, came to know about the anomalies in the foetus during a sonography conducted at 22 weeks and four days of her gestation period. She had to approach the High Court as the Medical Termination of Pregnancy Act prohibits abortions after 20 weeks.

“It is very difficult for us to refuse permission to the petitioner to undergo medical termination of pregnancy. It is certain that if the foetus is allowed to be born, there is a risk that it would suffer from lifelong serious physical handicap, which cannot be avoided. It appears that the baby will certainly not grow any further,” Justice Shantanu Kemkar said.

The Bench of Justice Kemkar and Girish Kulkarni took into consideration the recommendation of a panel of the state-run JJ Hospital, set up by the court last week, which suggested that it is advisable to terminate pregnancy.

“Upon examination of the petitioner and evaluation of the opinions, the Medical Board has concluded that there are multiple serious neurological and skeletal abnormalities in the foetus. There is Arnold Chiari Malformation (brain anomaly), the lower limb shows no movement associated with abnormal contour of the foot and an elongated urinary bladder. These appearances are suggestive of neurogenic etiology. These abnormalities have high chances of morbidity and mortality in the newborn. It also requires multiple surgeries. There are high chances of meningitis, mental retardation, paralysis of the lower limbs and loss of urine and bowel control,” the court noted.

The Bench said that the petitioner – the expectant mother – had been explained the outcome of this pregnancy. “She is mentally sound and able to take her own decision about medical termination of pregnancy. The condition of the foetus fulfills the criteria of ‘substantial risk of serious physical handicap’ in the foetus (in which case abortion is allowed). It is also clear that the petitioner has voluntarily expressed her desire to terminate the pregnancy and is well informed about the nature of the foetus,” said Justice Kemkar.

“In view of the above peculiar situation and having due regard to the fundamental rights conferred on the petitioner under Article 21 of the Constitution of India to live a life of dignity, it will be appropriate and in the interest of justice to permit the petitioner to undergo the medical termination of pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971,” held the High Court. The central government also did not oppose the woman’s ground for seeking medical termination. The court has directed the termination of pregnancy to be performed on Tuesday by expert doctors of Sir JJ Group of Hospitals, Mumbai. The court also sought to know if the government has formed medical committees and evolved medico-legal guidelines for a permanent mechanism for termination beyond 20 weeks of pregnancy in exceptional cases.

The advocate appearing for the Union government informed the court that it had directed the states to set up permanent medical expert boards for this purpose. The petition stated that she was suffering from immense mental and physical anguish as a result of the unreasonable 20-week restriction under the MTP Act. “The challenge primarily questions the rationale behind the period of limitation that has been statutorily prescribed to be not exceeding 20 weeks for a woman to undergo abortion, which may have been reasonable when the section was enacted in 1971, but has ceased to be reasonable in view of the stride in technology, which has made it perfectly safe for a woman to abort even up to the 26th week and thereafter,” stated the petition. The petition stated that foetal abnormality in many cases can only be determined after the 20th week and therefore it sought declaring the 20-week ceiling as “ultra vires.”