High Court of Delhi was dealing with the petition seeking for a writ of mandamus or any other writ, order, directing the Respondents to allow the Petitioner to undergo Medical Termination of the Pregnancy.
Brief Facts:
The petitioner has sought medical termination of her pregnancy on the ground that the foetus is suffering not only from Edward Syndrome but also from non-ossified nasal bone and bilateral pyelectasis. In case the pregnancy is taken to its logical conclusion, then as per 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, but mental health as well. The petitioner’s request for a medical termination of pregnancy however, was not acceded to, as by this time she had already completed 28 weeks of pregnancy. It is at this stage that the petitioner has approached the Court seeking permission to undergo medical termination of her pregnancy under sections 3(2)(b) and 3(2B) of the Medical Termination of Pregnancy Act, 1971 as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021. On 03.01.2022, the Court after noticing the fact that the petitioner was already at an advanced stage of her pregnancy, directed the LNJP Hospital to constitute a Medical Board at the earliest and submit its report after examining the petitioner and her medical reports. The report clearly shows that the petitioner’s foetus is found to be suffering from Edward Syndrome. The report also opined that 80% of children born with his syndrome die in the first year itself, and the ones who survive also do not live for more than ten years, and that too with neurodevelopmental delay.
Petitioner’s Contention:
Learned counsel for the petitioner submitted 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.
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 contended 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.
Respondent’s Contention:
Learned Counsel for the respondent submitted 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 medical opinion, there are certain inherent risks the petitioner herself faces if she is allowed to terminate her pregnancy at this stage.
HC’s Observations:
After hearing both the sides Court stated that 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.
HC relied upon the case of Pratibha Gaur v. Government of NCT of Delhi & Ors. 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 that “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.”
HC observed 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. Court stated that 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.
HC Held:
After evaluating submissions made by both the parties the Court held that “no doubt, there are certain risks to the petitioner herself in undergoing the termination of her pregnancy at this stage but when considered in the light of the medical opinion which clearly suggests that the foetus is suffering from a rare chromosomal disorder, the compelling reason for the petitioner to seek permission to end her pregnancy are not difficult to fathom. The petitioner is also present in person and submits that she has been explained the risks involved in the procedure. 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.”
Bench: Hon'ble Ms. Justice Rekha Palli
Case Title: Sangeeta Thapa v. Govt. Of NCT Of Delhi & Ors.
Case Details: W.P.(C) 15241/2021
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