The Delhi High Court recently comprising of a bench of Justice Rekha Palli allowed termination of pregnancy of a 28-year-old woman whose gestational period had exceeded 28 weeks after taking note of her mental and emotional distress apart from the foetus abnormalities. (SANGEETA THAPA v. GOVERNMENT OF NCT OF DELHI & ORS.)
Facts of the case
The petitioner, a 28-year-old pregnant woman, has approached this Court seeking reliefs for a writ of mandamus or any other writ, order, directing the Respondents to allow the Petitioner to undergo Medical Termination of the Pregnancy.
The petitioner has sought medical termination of her pregnancy on the ground that the foetus is suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis. In case the pregnancy is taken to its logical conclusion, then as per the medical opinion, the child is not likely to survive beyond one year, and that too with continued medical assistance, which will not only cause severe harm to her physical, and mental health as well.
Contention of the Parties
By relying on the report, learned counsel for the petitioner submits that Trysomy 18 pregnancies have a high risk of fetal loss and stillbirths, with the major causes of death being central apnea, cardiac failure due to cardiac malformations, respiratory insufficiency due to hypoventilation, aspiration, or upper airway obstruction and, likely, the combination of these and other factors. Furthermore, in older children with Trysomy 18, significant developmental delay is always present, ranging from a marked to profound degree of psychomotor and intellectual disability, and in most cases, expressive language and ability to independently walk are not achieved.
She further submitted that forcing the petitioner to go through this pregnancy despite her knowing fully well that the child she gives birth to will most likely not survive beyond the first year, will take an immense toll on her mental wellbeing, and thus defeat the very purpose of the MTP Act. She contends that the MTP Act allows women to terminate their pregnancies even after 24 weeks gestation period if it is found that the continuance of the same is likely to cause grave injury to her physical or mental health.
Learned counsel for the respondent, opposed the petition by contending that now that the petitioner has reached an advanced stage of her pregnancy, no permission for termination thereof ought to be granted, especially since as per the medical opinion, there are certain inherent risks the petitioner herself faces if she is allowed to terminate her pregnancy at this stage.
Courts Observation and Judgment
The bench taking note of the facts of the case noted, "It is evident that the Legislature was conscious that a pregnant woman should have a right to seek medical termination of pregnancy not only when the foetus is diagnosed with substantial abnormalities by the Medical Board, but also when forcibly continuing the pregnancy is likely to cause grave injury to her mental health. A plain reading of sections 3(2)(b)(i), 3(2)(b)(ii) and 3(2B) of the MTP Act together clearly indicates that medical termination of pregnancies can in certain situations be allowed even where duration of the pregnancy exceeds 24 weeks."
The bench even referred to the case of Pratibha Gaur v. Government of NCT of Delhi & Ors. [W.P.C.14862/2021] wherein a woman was granted the relief of terminating her pregnancy much after 28 weeks had passed, after observing that if she was forced to continue with the pregnancy, despite knowing that the child will be born with certain congenital defects, her mental wellbeing would be gravely prejudiced.
The Court held as under: “It is explicitly clear from a plain reading of the provisions of Section 3(2)(b)(i) of MTP Act, as amended, that grave injury to "mental health‟ of a pregnant woman is a legal ground available to
the woman to seek medical termination of pregnancy, with the caveat that the maximum period permissible under the Act, for termination, is 24 weeks."
The bench taking note of the above remarked, "In the present case I am of the considered view that, if the petitioner is forced to continue with the pregnancy, she will not only constantly live with the fear that the odds of giving birth to a stillborn are very high, but that even if the infant is born alive, she will be raising the child with heavy pain knowing that she could lose the child forever within a few months. Not to mention that the child will be born with such substantial abnormalities that living a normal life may never be an option, thus causing grave hardship to the child as well as putting the petitioner through extreme amounts of mental, emotional, and even financial distress. It is thus a clear case where, leaving aside the lifelong anguish and trauma which may be caused to the petitioner, the foetus itself suffers from such abnormalities that it clearly falls under the ambit of section 3(2B) of the MTP Act."
The bench disposing of the writ petition remarked, "I thus have no hesitation in holding that this is a fit case where the petitioner should be granted permission to undergo medical termination of her pregnancy at a medical facility of her choice. However, the same shall be done at her own risk and consequences.
The writ petition is, accordingly, disposed of in the aforesaid terms."
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