The Calcutta High Court Bench comprising Justice Md. Nizamuddin refused the plea filed by petitioner- woman seeking medical termination of 31-weeks fetus due to medical complexity in the heart of the fetus.
Background
This Please was filed by a woman seeking medical termination of her 31 weeks old foetus on account of a rare and complex congenital heart defect. On October 23, 2021, during her 31 weeks gestation period, she had discovered through fetal echocardiography that the foetus has a prognosis of 'hypoplastic left heart syndrome'- a congenital defect that affects normal blood flow through the heart.
Advocate Saswata who appeared for the Petitioner stated that the Medical Board comprising 9 specialists had been constituted pursuant to a prior order of the High Court dated October 26, 2021. Following the same Court considered the medical report of the Medical Board which was not favouring the MTP.
Submissions
Advocate Sarkar vehemently argued for permitting medical termination of the pregnancy by contending that the foetus would not survive if it sees the light of the day due to the congenital heart defect. He brought to the notice of the Court that the Medical Board which had been constituted did not have any pediatric cardiologist.
It was pointed out that the Ministry of Health and Family Welfare, Union of India in 2019 had issued a Guidance Note for Medical Boards for Termination of Pregnancy beyond 20 weeks wherein it recommended a list of congenital abnormalities for which termination beyond 20 weeks should be permitted.
It was further argued that the petitioner has the right to undergo medical termination of pregnancy as per Section 3(2B) of the Medical Termination of Pregnancy (Amendment) Act, 2021 and Rule 4A (3) of the Medical Termination of Pregnancy (Amendment) Rules, 2021.
Petitioner highlighted that She had her reproductive choice which is an essential part of her personal liberty as enshrined under Article 21 of the Constitution and upheld by the Supreme Court in Suchita Srivastava v. Chandigarh Administration.
It was also put forward that forcing the petitioner to go through an unwanted pregnancy infringed her right to dignity and sexual and reproductive freedom as guaranteed under Article 21 of the Constitution of India and the International Covenant on Economic, Social and Cultural Rights. It was highlighted in the Petition that Forcing the petitioner to deliver a foetus with no potential to survive due to rare congenital heart disease, gravely endangers the petitioner's mental and physical health by causing her significantly more mental anguish, trauma and physical pain than she would have to ensure if the MTP Act does not allow her to terminate her pregnancy.
Government Counsel Advocate Tapan Mukherjee apprised the Court that all possible arrangements had been made by the State to ensure the immediate admission of the petitioner at SSKM Hospital, Calcutta.
Order of the Court
The Court took into the record the Report of the Medical Board wherein experts advise against the Abortion of 31 weeks foetus.
Justice Nizamuddin observed that,
"Considering this report of expertise, I am not inclined to consider the prayer of the petitioner for termination of pregnancy. Considering the submission of government pleader that the State will take all possible steps for the safety of the child as well as mother and facilitate the admission of the petitioner in SSKM Hospital Calcutta and shall also see that all possible steps are taken for the safety of the mother as well as child and for safe delivery following medical ethics."
The Court refused to accept such a plea and further opined that the Court does not have the expertise to make such a determination and would instead rely on the report of the Medical Board. He further asked counsel in the Courtroom to show his such instance of terminating 31 weeks old fetus stating,
"Show me an instance where after 31 weeks Court has allowed and I will wait for 4 more weeks"
Accordingly, the petition was disposed of.
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