A single-judge bench of Justice Pratibha M. Singh of the Delhi High Court while allowing termination of 33-weeks old pregnancy, has ruled that ultimate decision involving fetal abnormalities cases lies solely in the hands of mother.

The Judge stressed that the mother is required, among other things, to must consider also the 'possibility of a dignified life for the unborn child'.

"In conclusion, the Court holds that the ultimate decision in such cases ought to recognize the choice of the mother, as also, the possibility of a dignified life for the unborn child", Justice Singh observed allowing 26-year-old married woman's petition seeking medical termination of her foetus of over 33 weeks suffering from cerebral abnormalities.

She stated that quality report from the Medical Board becomes a must in such matters to assist the Court and therefore they should be comprehensive. The Judge added that to delivering speedy decisions in these cases is of great importance which is hugely assisted by qualitative medical reports.

"There ought to be some standard factors on which the opinion should be given by the board to whom such cases are referred. Such factors ought include medical condition of the fetus. While giving the scientific or medical terminologies, some explanation in laypersons terms as to the effect of such condition ought to be mentioned. Alternatively, medical literature could be an annexed with opinion."

It was mentioned that in the Medical Opinion, the Courts should be briefed on risks in either continual of the pregnancy or its termination, any other relevant factor/s which may have a bearing on the case among other factors.

Reflecting on Indian Laws with regard to Right of Women to decide on abortions while comparing it to world scenerios, Justice Singh commented that India leans pro-choice highlighting recent amendments.

"This right gives a woman the ultimate choice as to whether to give birth to the child that she has conceived. India is amongst the countries that recognizes this choice of the woman in its law and has even expanded this right in recent time with amendments permitting the termination at an advanced stage under various circumstances," she said.

She dicussed the dilemna that women faces in 'foetal abnormalities' matters and remarked that with no exception, Courts have to grapple with issues that are not merely factual and legal, but also involve ethical and moral factors.

Owing to medical unpredictability of the degree of abnormalities,Justice Singh said, the relaxation given in cases of 'substantial foetal abnormalities', stands vague in terms and allow Courts to take assistance of external material for interpreting the said expression.

The Court herein took note of the definition of the terminology from foreign law i.e. United Kingdom and United States.

"A perusal of the above definitions would show that some of the definitions are extremely broad and wide, whereas, others are narrow and constricted. The question as to what would constitute "substantial foetal abnormalities" is, thus, dependent not only upon the medical conditions of the foetus, but also, on the broad public policy of the particular State or Country," the court said.

In view of the above, the Court ruled that since judicial precedents in India have supported the rights of women to abort or medically terminate the pregnancy depending on a number of factors including feotal conditions and health risk posed to mother including mental health, the petition could be allowed.

It though admitted that at every instance the permission has been granted in view of a favourable medical opinion but however stated that the medical board in the present case unfortunately has not been able to give a categorical opinion as to the degree of handicap or as to the quality of the child after birth, with certainty.

"In the mind of the court, such unpredictability and risk ought to weigh in favor of the woman seeking termination of pregnancy. In the conversation between the court and the petitioner, the court has clearly been able to gauge the mental trauma affecting the parents, their economic and social conditions, as also the fact that the petitioner is taking a cautious and well informed decision while seeking termination of pregnancy. She has understood as to what the initial pregnancy entails at such an advanced stage. This court is convinced that as a mother she has weighed the same with the unpredictability and the risks involved considering the condition of the fetus."

The Judge stated that these factors, though may not be strictly relevant under Section 3(2B) of the MTP Act, 1971, but ought to be considered while dealing with petition under Article 227 of the Constitution.

"In addition, the factors such as mental and physical health of the woman, the risk of the child if born suffering from serious physical or mental abnormality, the likelihood of the child being born with deformities, and living with deformities, coupled with the risks of surgery at such a nascent stage after being born, the results of which are also not conclusively known, and the lingering question as to whether the child would be self-sustaining or not, tilts the Court's mind in favour of the plea of the Petitioner", the Court ruled.

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