The verdict would have been a ‘No’, even if Niketa and Haresh Mehta had moved the court before the 20th week of pregnancy, said Justices RMS Khandeparkar and Amjad Sayed on Monday.
“It is difficult for the court to give direction what you are asking. How can we ask to kill somebody when the medical reports nowhere justify it?” said Justice Khandeparkar, before he refused to grant permission to the Mehtas to abort their 26-week unborn child, who was diagnosed with a cardiac deformity a week ago.
The bench said the experts’ opinion did not suggest that the child would be incapacitated after birth.
The Bhayander-based couple had filed a petition seeking permission to abort the 24-week foetus two weeks ago. The Mehtas had also sought an amendment to the Medical Termination of Pregnancy Act, so that pregnancy could be terminated even after 20 weeks, in case the child would have serious abnormalities, rendering it handicapped. The 37-year-old Act permits termination of pregnancy up to the 20th week under certain circumstances. The petition contended that there was a lapse on the part of the legislation to not include the condition where a child would be born with severe deformity.
“We are afraid the contention of the petition, if accepted, amounts to legislating Section 5 of the Act,” observed the bench.
An Act can be amended only by the legislature.
Considering the defects as they are today, experts are not sure whether a cardiac surgery will be required at or after birth, the court added, considering the opinion of a panel from JJ hospital.