The Delhi High Court Tuesday allowed a 26-year-old woman to medically terminate her pregnancy after she moved the court claiming “cerebral abnormality” of the foetus, saying her mental and physical health and the child’s wellbeing tilted “its mind in favour” of her plea.
In a 33-page judgment, a single judge bench of Justice Pratibha Singh said, “The Court has clearly been able to gauge the mental trauma affecting the parents, their economic and social conditions, as also, the fact that the Petitioner is taking a cautious and well-informed decision, while seeking termination of pregnancy. She has understood as to what termination of pregnancy entails at such an advanced stage.”
“The ultimate decision in such cases ought to recognise the choice of the mother, as also, the possibility of a dignified life for the unborn child,” the court held after considering the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971, interactions with the woman and senior doctors of the LNJP Hospital, who gave their opinion in the medical report, and perusing the report of the hospital’s medical board.
“Keeping in mind these two factors, the Court comes to the conclusion that the mother’s choice is being made in a completely bona fide manner. There is considerable doubt and risk involved in the unborn child’s chances of leading a dignified and self-sustaining life, based on the medical evidence and reports. Considering this position, this Court holds that the medical termination of pregnancy ought to be permitted in the present case,” it ruled.
The court permitted the woman to undergo the termination procedure “immediately” at the “LNJP Hospital, or the GTB Hospital, or an approved medical facility of her choice” as per the MTP Act under the “supervision of a properly constituted medical team”. It said before the woman undergoes the procedure she will be once again “informed of the procedure being undertaken”, and her “informed consent” will be obtained. The woman “shall undergo the said medical termination of pregnancy, at her own risk, as to the consequences of the same”, it added.
The high court said it is convinced that as a mother, the woman had weighed the process of termination with the “unpredictability and the risks involved, considering the condition of the foetus”. It said factors such as the woman’s mental and physical health, the risk of the child if born suffering from a serious physical or mental abnormality, the likelihood of the child being born with deformities, and living with deformities, coupled with the risks of surgery at such a nascent stage after being born, the results of which are also not conclusively known, and the lingering question as to whether the child would be self-sustaining or not, “tilts the Court’s mind in favour” of the woman’s plea.
Observations on medical boards
In this case, the high court also observed, the medical board at the LNJP Hospital was “unfortunately” unable to predict or give a categorical opinion on the “degree of the handicap” or on the quality of life of the child after birth, with “certainty”. The court opined that such unpredictability and risks “ought to weigh in favour of the woman seeking termination of pregnancy”.
Perusing the provision of the MTP Act, which relaxes the conditions of the length of pregnancy in cases of “substantial foetal abnormalities”, Justice Singh observed the Act does not define what constitutes “substantial foetal abnormalities”. The court took the help of external material for interpreting the meaning of the term. It said the question as to what would constitute “substantial foetal abnormalities” is dependent not only upon the medical conditions of the foetus but also, on the broad public policy of the particular state or country.
Perusing through the judicial precedents on this issue in India, the high court said, “Courts have permitted termination of pregnancy even at an advanced stage i.e., even in the ninth month if substantial foetal abnormalities are detected in the foetus”. The HC, however, observed that in judicial precedents examined by the court the medical board in those cases gave an opinion in favour of termination of the pregnancy.
The Delhi High Court also made certain observations on the report given by the medical boards. While observing that their opinion is of considerable importance for the assistance of the courts, however, such opinions cannot be “sketchy and fragmented” and should be “comprehensive in nature”. “In such cases, speediness coupled with qualitative reports is of utmost importance,” it remarked.
The court said there should be certain standard factors, including the medical condition of the foetus, on which the board should base their opinion while submitting a report on such cases. It added that while using scientific or medical terminologies explanations in “lay-person terms” on the effect of such conditions should be mentioned. In the alternative, medical literature could be given along with the opinion and the medical board should interact with the woman in a “congenial manner”, and assess her physical and mental condition and this should form part of the report. The court added the board’s opinion should mention the risks for the woman in either continuing the pregnancy or undergoing termination.
The high court additionally observed that while a woman’s choice to give birth as she is the “ultimate giver of life in this world”, beyond the omnipresent, cases seeking termination, like the one before it, highlight the “severe dilemma that women undergo while taking a decision to terminate her pregnancy”. The court recognised that even with the emergence of modern technologies to detect abnormalities in an unborn child, the issues surrounding termination and abortion are bound to become more and more complex.