Woman’s right to choose to continue pregnancy with foetal abnormalities or not; Bombay HC allows woman to terminate 33-week pregnancy

Advocate Aditi Saxena submitted that the Court was not bound by the medical board’s recommendation. She said the medical board had confirmed “substantial foetal abnormalities” including a birth defect called microcephaly – where the baby’s head is smaller than expected and the brain might not have properly developed. Another abnormality pointed out by the board was lissencephaly, a rare gene-linked brain malformation and many with such abnormality die before the age of 10.

She said, therefore, the time limits of up to 20 weeks but less than 24 weeks, and beyond 24 weeks do not apply.

The bench said the medical board’s view to not recommend termination because it was ‘late’ was “plainly wrong”.

“Given a severe foetal abnormality, the length of the pregnancy does not matter,” the bench said. It added that in such cases, courts must also consider “profound questions of identity, agency, self-determination and the right to make an informed choice.”

“The Petitioner takes an informed decision. It is not an easy one. But that decision is hers, and hers alone to make, once the conditions in the statute are met. The right to choose is the petitioner’s. It is not the right of the Medical Board. And it is also not the right of the Court to abrogate the petitioner’s rights once they are found to fall within the contemplation of the law,” it held.

The Court added that 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.”

“It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today that there is no possibility of having a normal healthy baby at the end of this delivery,” the high court said.

Justice Patel noted that the Court should ensure that the rights of the petitioner are never compromised in the “blind application of a statute.” The bench observed, “Justice may have to be blindfolded; it can never be allowed to be blindsided.”

Maintaining that “it was mindful of its limitation in writ law,” the Court said such cases “often raise profound moral questions and dilemmas.” “But this is immutable: that the arc of the moral universe always bends towards justice,” it added.

After perusing the medical report, it noted that the existence of foetal anomaly of microcephaly, despite being detected late, was “certain” and the same was “substantial and severe”. It added, “In its severe form, it can be life-threatening.”

The Court said that the medical board failed to consider the “social and economic position of the petitioner and her husband”.

“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,” it added.