The “ultimate decision” in cases of abortion should “recognise the choice of the mother” and the chances of a “dignified life” to the child, the Delhi high court said on Tuesday as it allowed a woman to terminate her pregnancy of over 33 weeks due to cerebral abnormalities in the foetus.
Delivering her verdict, justice Prathibha M Singh said that factors like the physical and mental health of the woman, the risk to the child if born with serious abnormalities, coupled with the risk of surgery at a young age, should be considered apart from the opinion of a medical board.
The judge noted that the medical board did not give a “categorical assessment” on the degree of handicap or the quality of the life of the foetus after birth and thus opined that “such unpredictability ought to weigh in favour of the woman seeking termination of pregnancy”.
According to the Medical Termination of Pregnancy (MTP) Act, abortion is allowed only till 24 weeks but termination of pregnancy beyond 24 weeks can be permitted only if it is necessitated by the diagnosis of “substantial foetal abnormalities”.
Allowing medical termination of the pregnancy, the judge said, “Keeping in mind, these two factors, the court is of the opinion that the mother’s choice has been made in a completely bonafide manner. There exist risks involved in the unborn child’s chances of leading a dignified and self-sustaining life based on medical reports.”
{{/usCountry}}Allowing medical termination of the pregnancy, the judge said, “Keeping in mind, these two factors, the court is of the opinion that the mother’s choice has been made in a completely bonafide manner. There exist risks involved in the unborn child’s chances of leading a dignified and self-sustaining life based on medical reports.”
{{/usCountry}}The 26-year-old woman approached the high court last week to seek medical termination of her pregnancy at 33 weeks on account of cerebral abnormalities in the foetus.
The woman in the present case argued that the 24-week limit was not applicable “since the foetus borne by the petitioner (woman) carries substantial cerebral abnormalities”.
The petitioner had said that during her ultrasounds till the 16th week of her pregnancy, no abnormalities were found but on November 12, an abnormality was observed in the foetus.
The high court then constituted a medical board at the Lok Nayak Jaiprakash hospital to make an assessment of the abnormalities.
The medical board, however, denied permission for the abortion even though it did not detail the extent of the child’s abnormalities.
The board said that while the condition is “compatible with life” and can be managed surgically, “the degree of handicap in the baby post delivery cannot be predicted”.
Justice Singh, who interacted with the woman on Monday, said she was convinced the woman weighed the risks involved and took a well-informed decision.
In the 33-page order, the court, citing the medical board’s opinion, said that the child would require surgery and publicly available material indicates that these conditions constitute a rare disorder present in a very small percentage of pregnancies.
The medical board’s opinion in such cases is of considerable importance and cannot be sketchy or fragmented, the court said.
“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 to include medical condition of the foetus, by explaining it in laypersons terms along with some medical literature annexed with it,” the court noted.
“The opinion should briefly mention as to what are the risks for the woman in either continuing the pregnancy or undergoing termination, any other factors to be considered, the relevant factors which may have a bearing on the case also ought to be mentioned,” the court said.
It noted that with the emergence of modern technologies to detect abnormalities in the foetus, the issues surrounding termination and abortion, are bound to become more and more complex.
“Such technology coupled with the unpredictability of degree of abnormalities, even by medical practitioners, posts challenges to the manner in which society may grow in the future,” the court said.
The right of a woman to choose to terminate her pregnancy has been the subject matter of debate across the world, the court said. India, however, is among the countries that recognizes this choice, and has even expanded the right by amending laws to allow abortions at an advanced stage.
“This right gives the woman the ultimate choice as to whether she wants to give birth to the child she has conceived,” the court said.
In September this year, the Supreme Court ruled that the marital status of a woman cannot be grounds to deprive her the right to abort an unwanted pregnancy, adding that single and unmarried women have right to abort under Medical Termination of Pregnancy Act till 24 weeks of pregnancy.
Such cases highlight the severe dilemma that women undergo while taking a decision to terminate pregnancies, the high court said on Tuesday.
“Courts are no exception, in that judges have to grapple with issues that are not merely factual and legal but also involve ethical and moral factors,” the court said.
“In conclusion, the court holds that the ultimate decision in such cases ought to recognise the choice of the mother as also the possibility of a dignified life of the unborn child,” the court said, allowing the woman to undergo an abortion at either GTB hospital or LNJP.