The Delhi High Court expounded that even if a situation falls under Section 3(2B) of the Medical Termination Pregnancy Act, 1971 (hereinafter referred to as “MTP Act”) other factors such as the physical, and mental health of the mother, etc. also must be considered. Some other factors like the risk involved if pregnancy is continued, the possibility of the deformity that the child will be born with, the risk of surgery at the nascent stage, etc. also must be looked at. It was held that ground under Section 3(2B) of the MTP Act is a justified ground for termination of pregnancy and therefore, limitations of Section 3(2) would not apply.
Brief Facts:
The Petitioner married in 2021 and conceived a child in 2022. The due date is said to be somewhere in January 2023. Three ultrasounds were conducted and the reports did not show any abnormalities in the foetus. After a gap, fourth ultrasound was done and it was found that there was a certain cerebral abnormality in the foetus. The said finding was confirmed by other ultrasounds done at different diagnostic centers. The Petitioner thereafter decided to terminate her pregnancy.
The Petitioner approached the hospital run by the Respondents who informed her about the procedure under the MTP Act according to which the Petitioner was asked to obtain permission from the Court for termination of pregnancy. This is why Petitioner has filed the present petition.
Background of the Case:
A report was submitted by the Medical Board in which the Neurologist gave the opinion that even though the foetus is compatible with life, the quality of such life cannot be ascertained. The Gynecologist gave the opinion that since pregnancy is almost as full term, termination at this stage would be as risky as it would be when the child is delivered in a normal course.
Observations of the Court:
It was observed by the Court MTP Act was recently amended in 2021. Before the amendment, pregnancy could be terminated with the opinion of one registered medical practitioner, if 12 weeks were not completed. In case of termination after 12 weeks and before 20 weeks, the opinion of 2 practitioners was required. Post-2021 amendment, the weeks were extended from 12 weeks to 20 weeks and 20 weeks to 24 weeks. It was noted that Section 3(2) of the Act provides for conditions when pregnancy can be terminated.
In the present case, the gestational period is beyond 33 weeks, it was noted by the High Court that Section 3(2B) of the MTP Act would apply under which the pregnancy can only be terminated if it is necessitated by the diagnosis of ‘substantial foetal abnormalities.’
It was remarked by the Bench that the definition of ‘substantial foetal abnormalities’ is dependent on the medical conditions of the foetus and the public policy of the particular State or Country. It was noted that in India, the rights of women to terminate pregnancy have been supported depending upon various factors such as the gestational period, the medical condition of the foetus, the physical and mental health of the woman etc. Moreover, the right of women to make reproductive choices was also recognized as an extension of personal liberty as granted under Article 21 of the Constitution. It was also observed that permission to terminate the pregnancy at advanced stages has also been given, however only when the Medical Board gave an opinion in favour of the termination of the pregnancy.
As regards the present case, it has to be ascertained whether the abnormality constitutes ‘substantial foetal abnormalities’ and for that, the Court relied on the test reports and diagnosis of the Medical Board. It was opined that for the termination of pregnancy at an advanced stage, what is required is ‘substantial foetal abnormalities’ and not mere foetal abnormalities.
The Bench observed that in the present case, the abnormality is such that surgery is required and the extent of the handicap is unpredictable as of now. It was also noted that the disorder is a rare disorder and even though Medical Board’s opinion is to deny the termination, the Court will have to consider the overall facts and circumstances. It was opined that since there is a high possibility of conducting surgery post birth and also the quality of life and degree of handicap cannot be determined at this stage, the abnormality would qualify as a ‘substantial foetal abnormality.’
The High Court expounded that even if a situation falls under Section 3(2B) of the MTP Act, other factors such as the physical and mental health of the mother, etc. also have to be considered. It was held that ground under Section 3(2B) of the MTP Act is a justified ground for termination of pregnancy and therefore, limitations of Section 3(2) would not apply. Since the Medical Board could not give a categorical opinion, the unpredictability and risks will weigh in favour of the woman seeking termination.
Noting the mental trauma, economic and social conditions of the couple and the fact that Petitioner was making a cautious and well-informed decision, the Delhi High Court opined that even though these factors are not directly relevant under Section 3(2B) of the MTP Act, they have to be considered while exercising Article 226 discretion. Other factors like the risk involved if pregnancy is continued, the possibility of the deformity that the child will be born with, the risk of surgery at the nascent stage, etc. also tilts the Court in favour of the Petitioner.
The decision of the Court:
The Delhi High Court propounded that in such cases, both the choice of a mother and the possibility of a dignified life for the unborn child has to be seen. Therefore, seeing the facts and circumstances of the present case, the Petitioner was permitted to terminate the pregnancy, and accordingly, the present petition was allowed.
Additionally, the High Court opined guidelines for the Medical Board regarding the opinion given by the Board. The factors to be kept in mind by the Board while giving opinion should include:
- The medical condition of the foetus
- The medical condition of the woman
- Risks involved for the woman
- And any other such factors that the Court should know while giving a decision related to the termination of pregnancy.
Case Title: Mrs. X. V. GNCTD & Anr.
Coram: Hon’ble Ms. Justice Pratibha M. Singh
Case No.: W.P.(C) 16607/2022
Advocates for Petitioner: Advs. Mr. Avnesh Madhukar, Mr. Yaseen Siddiui, Mr. Panjal Shekhar, Ms. Prachi Nirwan
Advocates for Respondents: Advs. Ms. Kavita Naillwal, Mr. Arjun Basra
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