Abc vs State Of Maharashtra Through ...
2023 Latest Caselaw 4867 Bom

   2023:BHC-AS:14452-DB


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                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION
             Digitally signed by
VASANT   VASANT
         ANANDRAO
ANANDRAO IDHOL
IDHOL    Date: 2023.05.29                      WRIT PETITION NO.6466 OF 2023
             20:17:26 +0530




                    ABC                                                             ...Petitioner
                              V/s.
                    State of Maharashtra                                            ...Respondent


                    Ms.Ruchita Padwal with Ms.Aditi Saxena and Ms.Bhoomika Vyas for
                    the Petitioner.

                    Mrs.Reema Salunkhe, AGP for the Respondent.

                                                             CORAM : R.D. DHANUKA, CJ &
                                                                     G.S. KULKARNI, J.

DATE : 29TH MAY, 2023.

(VACATION COURT)

P.C. :-

1. Rule. Mrs.Salunkhe, learned AGP waives service for the

Respondent. Rule is made returnable forthwith. By consent of parties,

the Writ Petition is heard finally.

2. By this Petition filed under Article 226 of the Constitution of

India, the Petitioner has prayed for a writ of mandamus directing the

Respondent to constitute a Medical Committee for examination of the

Petitioner and for seeking permission for Medical Termination of

Pregnancy.

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3. The Petitioner a married woman and has approached this

Court, praying for termination of Medical Pregnancy having a 24

weeks fetus. The Petitioner has annexed the report of Orange

Diagnostic Centre, as also two reports from the Jaslok Hospital which

indicates that microcephaly is an evolving foetal abnormality and

neurological development for the baby can be affected and for which

the parents have intended medical termination of pregnancy.

4. In pursuance of the order dated 26 May, 2023 passed by

a Co-ordinate Bench of this Court, a Medical Board was constituted

with a direction to submit a report. In pursuance of the said order, the

Medical Board constituted by Sir J.J. Group of Hospitals & Grant

Government Medical College, Mumbai has submitted a report dated

26 May, 2023. The Committee is of the opinion that the present

case is a fit case for Medical Termination of Pregnancy, which bears

same risks and consequences as that of delivery at term. It is opined

as under :

                      "AFTER     CAREFUL   EXAMINATION,
             ULTRASONOGRAPHY          REPORTS      AND

INVESTIGATION, IT IS CONFIRMED THAT FETUS HAVE MICROCEPHALY MAY BE DUE TO GENETIC CAUSE, SYNDROME OR INFECTION (TORCH).

MICROCEPHALY LATER ASSOCIATED WITH MENTAL RETARDATION, INTELLECTUAL DISABILITY, SEIZURES, CEREBRAL PALSY, HEARING AND VISION DEFICIT CAUSING SUBSTANTIAL RISK OF PHYSICAL HANDICAP WITH INCREASED MORBIDITY AND OCCASIONAL MORTALITY.

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THE COMMITTEE HAS FOUND THAT AT PRESENT THE MOTHER IS FIT FOR MEDICAL TERMINATION OF PREGNANCY WHICH BEARS SAME RISKS AMD CONSEQUENCES AS THAT OF DELIVERY AT TERM.

MOTHER WAS EXAMINED BY PSYCHIATRIST. THE MOTHER IS FIT FOR MEDICAL TERMINATION OF PREGNANCY.

IF THE PREGNANCY IS TERMINATED NOW, THE FOETUS MAY BE BORN ALIVE REQUIRING NEONATAL INTENSIVE CARE.

THE MOTHER AND HER RELATIVES HAVE BEEN MADE AWARE OF THE SAME.

IF THE COURTS PERMITS, THE PETITIONER CAN UNDERGO MEDICAL TERMINATION OF PREGNANCY AT ANY INSTITUTE SHE DESIRES.

HOWEVER, THE FINAL OPINION REGARDING THE FITNESS CAN BE DECIDED UPON DEPENDING ON THE CLINICAL CONDITION OF THE MOTHER AT THE TIME OF PROCEDURE."

5. The opinion submitted by the Committee is taken on

record and marked "X" for identification. Learned counsel for the

Petitioner on instructions make a request that if this Court is of the

opinion that the Petitioner can be permitted to Terminate Pregnancy,

the Petitioner shall be allowed to go for subsequent procedure at

Jaslok Hospital. She further states that her client is ready and willing

to follow the procedure as prescribed in the Guidance Note for

Medical Termination of Pregnancy of more than 20 weeks.

Statements are accepted.

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6. Learned AGP has also perused the report submitted by the

Committee and states that if this Court permits the Petitioner for

Medical Termination of Pregnancy, sufficient safeguards shall be

provided in the order.

7. We have perused the recent judgment of the Supreme

Court in case of "X vs. The Principal Secretary, Health & Family

Welfare Department, Government of CT of Delhi & Anr., dated 29

September, 2022 (2022 SCC OnLine SC 905). The Supreme Court

considering the provisions of Section 3(2)(b) of the Medical

Termination of Pregnancy Act,1971, has observed in the context of

the rights of a woman and the autonomy and control she would have

over her body and more particularly in matters relating to reproductive

decisions. It is held that the decision to have or not to have an

abortion is borne out of complicated life circumstances, which only

the woman can choose on her own terms without external

interference or influence. It is held that reproductive autonomy

requires that every pregnant woman has the intrinsic right to choose

to undergo or not to undergo abortion without any consent or

authorization from a third party. The relevant paragraph of the

Supreme Court reads thus :

"98. To this, we may add that a woman is often enmeshed in complex notions of family, community, religion, and caste. Such external societal factors affect the way a woman exercises autonomy

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and control over her body, particularly in matters relating to reproductive decisions. Societal factors often find reinforcement by way of legal barriers restricting a woman's right to access abortion. The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party.

99. The right to reproductive autonomy is closely linked with the right to bodily autonomy. As the term itself suggests, bodily autonomy is the right to take decisions about one's body. The consequences of an unwanted pregnancy on a woman's body as well as her mind cannot be understated. The foetus relies on the pregnant woman's body for sustenance and nourishment until it is born. The biological process of pregnancy transforms the woman's body to permit this. The woman may experience swelling, body ache, contractions, morning sickness, and restricted mobility, to name a few of a host of side effects. Further, complications may arise which pose a risk to the life of the woman. A mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy. Therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman."

8. In the aforesaid circumstances, we are clearly of the

opinion that this is a fit case where we ought to permit the petitioner

to undergo medical termination of pregnancy accepting the opinion

of the Medical Board of the Sir. J. J. Hospital as constituted by this

Court. We accordingly pass the following order :-

a). The Petitioner is permitted to undergo Medical Termination

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of Pregnancy as per the report dated 26 May, 2023 at Jaslok

Hospital, Mumbai.

b). Jaslok Hospital, Mumbai shall ensure that the procedure is

performed at a place which satisfies all the requirements of law for

undertaking Medical Termination of the Petitioner's pregnancy and

the procedure shall be conducted by the Medical Practitioner (s) who

satisfies the conditions laid down under the rules.

c). Jaslok Hospital, Mumbai shall follow the Guidance Note for

Medical Committee for Medical Termination of Pregnancy beyond 20

weeks while carrying out further procedure.

d). In case the child is born alive, the Medial Practitioner who

conducts the procedure will ensure that all necessary medical

facilities are made available to such child for saving life.

e). The Writ Petition is allowed. Rule is made absolute in

aforesaid terms.

f). The Petitioner has agreed to remain present before Jaslok

Hospital, Mumbai for the purpose of completing the procedure of

Medical Termination of Pregnancy tomorrow i.e. 30 May, 2023 at

11:00 am.

g). Parties as well as Jaslok Hospital, Mumbai to act on the

authenticated copy of this order.

(G.S. KULKARNI, J.)                                     (CHIEF JUSTICE)