Bombay HC allows termination of 33-week pregnancy, says decision is woman’s alone

While allowing a woman to terminate her 33-week pregnancy after the foetus was detected with severe abnormalities, the Bombay High Court (HC) said that a woman has the right to choose whether to continue her pregnancy or not. In a judgment passed by a Division Bench comprising of Justices Gautam Patel and SG Dige on January 20, a copy of which was made available on Monday, January 23, it was underlined that the choice to terminate a pregnancy is the pregnant woman’s alone, and not the Medical Board’s.

The petitioner, a married woman, had approached the HC seeking to terminate her pregnancy after sonography revealed that the foetus had severe abnormalities and that the baby would be born with physical and mental disabilities. The petitioner contended that she is from a humble background and would not be able to bear the financial expenses of an infant born with such conditions. The court had directed a Medical Board to look into the matter and the Board from a hospital in Pune stated that the deformities of the baby could be corrected through surgical procedures free of cost at government and municipal hospitals. The Board said that considering the pregnancy is at an advanced stage, termination is not recommended.

Advocate Aditi Saxena who represented the woman argued that the court is not bound by the recommendations of a Medical Board and that the length of the pregnancy is not a criterion under the Medical Termination of Pregnancy Act (MTP) in the case of severe foetal abnormalities, especially if the mother is fit to undergo the termination procedure.

Agreeing with her, the court said, “Given a severe foetal abnormality, the length of the pregnancy does not matter. The petitioner has taken an informed decision. It is not an easy one. But that decision is hers, and hers alone to make. The right to choose is of the petitioner's. It is not the right of the medical board." “Refusing termination of pregnancy only on grounds of delay would not only be condemning the foetus to a less than optimal life but would also be condemning the mother to a future that will almost certainly rob her of every positive attribute of parenthood,” the HC added in its order.

Commenting on the weightage that must be placed on a Medical Board’s opinion, the court also said, "It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today there is no possibility of having a normal healthy baby at the end of this delivery. Accepting the Medical Board's view is not just to condemn the foetus to a substandard life but is to force on the petitioner and her husband an unhappy and traumatic parenthood. The effect on them and their family cannot even be imagined."

The petitioner's foetus was detected with both microcephaly (the condition of having a smaller head and brain) and lissencephaly (gene-linked brain malformation). In cases such as this, often, profound moral questions and dilemmas are raised about preserving life. The Bench noted that the Medical Board did not take into account the social and economic position of the couple. "It ignores their milieu entirely. It does not even attempt to envision the kind of life, one with no quality at all to speak of, that the petitioner must endure for an indefinite future if the Board's recommendation is to be followed," the court said.

"The Board really does only one thing: because late, therefore no. And that is plainly wrong, as we have seen," the court said while allowing the pregnancy to be terminated.

With inputs from PTI