The Bombay High Court permitted the medical termination of the Petitioner’s pregnancy in the 33rd week. The Court noted that this is a situation where medical reports indicate serious foetal anomalies and abnormalities.
Therefore, the division bench comprising of Hon’ble Justice G.S. Patel and S.G. Dige believed that denial of her termination only on the grounds of delay will amount to robbing Petitioner’s right to reproductive autonomy, fundamental right to privacy, self-determination, and right to make an informed choice about herself and her body.
Brief Facts:
The background of the case was that the Petitioner approached this Court to seek permission for medical termination when she was in roughly her 32nd week of pregnancy. Her routine medical check-up showed serious foetal anomalies and abnormalities. This Court checked the veracity of the reports and found that the condition of the foetus was undisputed, viz., the detection of microcephaly and lissencephaly.
The Petitioner invoked the writ jurisdiction of the Court as Section 3 of the Medical Termination of Pregnancy Act 1971 (“the MTP Act”), which is silent on what is to happen if late in the pregnancy, a foetal abnormality is indeed detected. Therefore, she asked this Court to consider the case of the pregnancy of a married adult woman differently from a situation where the pregnancy is of an unmarried adult woman, sexual assault survivor or minor.
Submission of the Petitioner:
The learned Counsel for the Petitioner submitted that once a medical report confirms ‘substantial foetal abnormalities’, the time limits of up to 20 weeks but less than 24 weeks, and beyond 24 weeks simply do not apply in the situation. She further argued that Section 3(2B) applies to a situation where, even with a planned pregnancy, the inherent uncertainties of pregnancy and parturition can sometimes confront a woman very late in her pregnancy with having to make a choice she never anticipated. However, this section was ignored by the Medical Board, while forming the opinion that medical termination is not permitted even after developing abnormalities.
The Counsel invited the attention of the Court to a Guideline Note for medical records for termination of pregnancy beyond 20 weeks’ gestation in cases referred by a court in which Category A, Item 15 is ‘microcephaly’. This is an indicative list that experts on the Medical Board refer to while reviewing cases of late-term termination of pregnancy requests on a High Court referral. She further explained how these diseases could be fatal and life-threatening after the birth of a child, and even there is no cure or standard treatment for it.
After relying on a catena of judgments, it was further argued by the Counsel that rejection of the Petition based only on the opinion of the Medical Board will be contrary to law. This will rob the Petitioner of her reproductive autonomy, her fundamental right to privacy, her right to self-determination, and her right to make an informed choice about herself and her body. Therefore, she prayed this Court to reconsider the decision of the Medical Board for allowing the termination of pregnancy of an Adult married woman in the 33rd week.
Observation of the Court:
This Court, after hearing the submissions of learned Counsel for the Petitioner, opines that cases such as this often raise profound moral questions and dilemmas, but this is immutable that the arc of the moral universe always bends towards justice. The bench further noted that this is not a case where a blanket invocation of this or that provision will provide an answer. The Court has to ensure that the rights of the Petitioner are never compromised in the blind application of a statute such as the MTP Act.
After perusing the Medical Board’s opinion, the Court noted that it only addresses medical interventions, the availability of incessant and ongoing treatments, and nothing more. The questions such as what if after carrying this foetus to term, the Petitioner finds she cannot tend to it, Is she then to be forced to make the next decision, to give up a child in adoption, how is that to be done and more importantly, why should that have to be done remained unanswered. It also did not consider the social and economic position of the Petitioner and her husband. It ignores their milieu entirely. The Board did only one thing: because late, therefore no. The Court held this opinion wrong as in a situation of severe foetal abnormality, the length of the pregnancy does not matter.
The decision of the Court:
The Bombay High Court allowed the writ petition and permitted the medical termination of the Petitioner’s pregnancy in the 33rd week.
Case Title: ABC vs State of Maharashtra
Coram: Hon’ble Justice G.S. Patel and S.G. Dige
Case no.: WRIT PETITION (ST) NO. 1357 OF 2023
Advocate for the Petitioner: Ms. Aditi Saxena
Advocate for the Respondent: Mr. VM Mali
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