A Single Bench of Calcutta High Court comprising Justice Rajasekhar Mantha via its order ordered termination of 34 weeks 6 days old foetus of a woman after taking into consideration that there are remote chances of the child surviving or leading a normal life.
Background:
In this case, Petitioner is a pregnant lady having a 35-week old foetus. She desired to terminate her pregnancy due to medical complications and therefore, filed the Petition in this court for allowing her to terminate her foetus on medical complications.
Earlier in this case this court ordered to provide complete details regarding the medical complications faced by the Petitioner so that the court could come to the conclusions whether to carry forward with the pregnancy or allow termination. The petitioner has orally indicated to this Court that she is aware of all medical consequences both on the child and herself if the pregnancy is taken to term and/or if the child is delivered prematurely.
The petitioner and her husband have both unequivocally submitted before this Court and on affidavit that notwithstanding uncertainty in course of surgery of this nature, and notwithstanding the consequences on the health of the petitioner and future consequences clearly indicated in the medical report, they wish to proceed with the termination of the pregnancy.
This Court had carefully considered the medical report dated February 15, 2022, submitted by the Medical Superintendent-cum-Vice Principal, IPGMER-SSKM Hospital, Kolkata including therewith a medical opinion of a team of nine Senior Doctors.
An unequivocal view expressed by such doctors was that the likelihood of a healthy child being born out of this pregnancy is remote. Even if a child is born, the chances of survival are slim. It is also opined that even if a child is born by medical intervention, it is likely to develop severe impairments and long-term ailments and would have limited mortality.
The risks and consequences to the petitioner, that would follow in course of such procedure i.e. for terminating of pregnancy at this stage have also been clearly indicated and the petitioner as well as her husband have carefully considered the same and have accepted such risks. It also appeared that there is no serious risk to the life of the petitioner. Learned counsel for the Petitioner relied on the case of Sarmishtha Chakrabortty and another vs. Union of India, Secretary and others reported in (2018) 13 SCC 339.
This decision has been applied by the Division Bench of the Bombay High Court in the case of Shaikh Ayesha Khatoon vs. Union of India and others reported in 2018 SCC Online Bom 11.
Observation of the Court:
Court for giving its decision relied on certain precedents. It relied on the decision of Sheetal Shankar Salvi [Sheetal Shankar Salvi v. Union of India, (2018) 11 SCC 606], after perusing the report, the Court observed that there is no danger to the mother’s life and the likelihood that the baby may be born alive and survive for a variable period of time, and, therefore, it would not be appropriate to allow Petitioner 1 to undergo medical termination of her pregnancy.
Further, it was said that, the orders [Savita Sachin Patil v. Union of India,(2017) 13 SCC 436], [Sheetal Shankar Salvi v. Union of India, (2018) 11 SCC 606] which have been referred to by Mr. Panda, in our considered opinion, rest on their own facts. Frankly speaking, cases of this nature have to rest on their own facts because it shall depend upon the nature of the report of the Medical Board and also the requisite consent as engrafted under the Medical Termination of Pregnancy Act, 1971.
In the instant case, as the report of the Medical Board revealed that the mother shall suffer mental injury if the pregnancy is continued and there will be multiple problems if the child is born alive. That apart, the Medical Board has categorically arrived at a conclusion that in a special case of this nature, the pregnancy should be allowed to be terminated after 20 weeks.
Relying on the judgment given In Suchita Srivastava v. State (UT of Chandigarh) [Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570], the Court has expressed the view that the right of a woman to have a reproductive choice is an integrable part of her personal liberty, as envisaged under Article 21 of the Constitution. She has a sacrosanct right to have her bodily integrity. The case at hand, as we find, unless the pregnancy is allowed to be terminated, the life of the mother, as well as that of the baby to be born, will be in great danger. Such a situation cannot be countenanced in Court.”
Applying the said dicta in the facts of the case particularly the medical report it was made clear and explicit, that there are remote chances of the child being born out of the instant pregnancy surviving or leading a normal life.The risks to the mother as well as the child were also highlighted in no uncertain terms. Considering the entire gamut of facts and circumstances, this Court permitted the petitioner to medically terminate her pregnancy at an authorized hospital and/or medical facility.
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