What Constitutes Substantial Foetal Abnormalities Under Medical Termination Of Pregnancy Act? Delhi High Court Explains

Overruling a medical board's opinion, the Delhi High Court on Tuesday allowed a 26-year-old woman to undergo termination of pregnancy at the stage of 33 weeks.

While the first three ultrasounds of the woman had not shown any abnormalities in the foetus, the November 12 report revealed "significantly dilated left lateral ventricle of the brain". Despite the cerebral abnormality, a medical board of Lok Nayak Jai Prakash Hospital on Monday had rejected her case, saying she is at an advanced stage.

Observing that the medical board "unfortunately" has not given a categoric opinion on the quality of the life of the child after birth, Justice Prathiba M. Singh on Monday ruled that "such unpredictability and risks ought to weigh in favour of the woman seeking termination of pregnancy".

Section 3(2B) Of MTP Act 

The Medical Termination Of Pregnancy Act provides the legal framework for abortions in India. The 1971 enactment, which was amended last in 2021, allows women to terminate the pregnancy upto certain weeks of gestation. The 2021 amendment expanded the permissible gestational period to 24 weeks but between 20-24 weeks, the medical termination of pregnancy is allowed only in certain cases.

However, Section 3(2B) of Act states that the condition "relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board".

Substantial Foetal Abnormalities 

Justice Singh in the ruling said that the MTP Act does not define as to what constitutes "substantial foetal abnormalities". Thus, she said the court is required to take the assistance of external material to interpret the expression.

Justice Singh took assistance from the statutes of the United Kingdom, Northern Ireland and Florida, USA in this regard. The foreign enactments define what constitutes "physical or mental abnormalities as to be seriously handicapped", "severe fetal impairment" or "fatal fetal abnormality".

Justice Singh said some of the above 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," she added.

To understand what constitutes "substantial foetal abnormalities", the court referred to a report titled "Termination of Pregnancy for Fetal Abnormality in England, Scotland and Wales" by the Royal College of Obstetricians and Gynaecologists.

The report analyses the risks and gravity of foetal abnormality and provides following factors that can be considered for determining the gravity of the same:

• the potential for effective treatment, either in utero or after birth
• on the part of the child, the probable degree of self-awareness and of ability to communicate with others
• the suffering that would be experienced
• the probability of being able to live alone and to be self-supportive as an adult
• on the part of society, the extent to which actions performed by individuals without disability that are essential for health would have to be provided by others.

The court also referred to New South Wales Supreme Court's decision in A v. X; [2022] NSWSC 971 and High Court of Justice Queen's Bench Division in "CC", "GC" v. Blackpool, Fylde and Wyre Hospitals NHS Trust; [2009] EWHC 1791 (QB). Both the cases involved pregnancies which had crossed 24 weeks.

How should the Courts decide?

Justice Singh said judicial precedents in India have supported the rights of women to abort or medically terminate the pregnancy depending upon the gestational period, the medical condition of the foetus, the physical and mental health of the woman, and other such factors.

Referring to Roshni Ashik Khan v. State of Maharashtra & Anr, Pratibha Gaur v. Government of NCT of Delhi & Ors, Smt. Nivedita Basu v. The State of West Bengal & Ors and Neethu Suhas & Ors. v. State of Kerala, Represented by Secretary, Department of Women & Child Development & Ors, Justice Singh said courts in India have permitted termination of pregnancy even at an advanced stage including even in the ninth month if "substantial foetal abnormalities are detected in the foetus."

Justice Singh said the court has to weigh the risks that are involved in such medical conditions and the unpredictability of the same qua post-birth life. The court further said even in a situation otherwise covered by Section 3(2B), other factors such as physical and mental health of the mother would have to be taken into consideration. 

"As per Section 3(2B), discovery of 'substantial foetal abnormalities' is a justified ground for directing medical termination of pregnancy and the limitations to the length of the pregnancy which are imposed under Section 3(2) would not apply in such cases," said the court.

The court further said factors like mental trauma affecting the parents and their economic and social conditions may not be strictly relevant under Section 3(2B) of MTP Act but ought to be considered while exercising discretion under Article 226 of the Constitution of India.

"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," Justice Singh said, while allowing the petitioner's plea.

Importantly, the court said 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."

Medical Board's Role

Justice Singh in the ruling also said that the opinion of the medical board in cases of termination of pregnancy is of considerable importance for assistance of the courts. Such opinions cannot be sketchy and fragmented, the judge said. The court also laid down the aspects which ought to be included in the report of the medical board in such cases.

1. Medical condition of the foetus – While giving the scientific or medical terminologies, some explanation in lay-person terms as to the effect of such condition ought to be mentioned. Alternatively, medical literature could be annexed with the Opinion;
2. Medical condition of the woman – The Medical Board ought to interact with the woman in a congenial manner, and assess her physical and mental condition. The same ought to be mentioned in the Opinion.
3. Risks involved for the woman – The Opinion should briefly mention as to what are the risks for the woman in either continuing the pregnancy or undergoing termination.
4. Any other factors to be considered – The Opinion should bring to the notice of the Court any other relevant factor/s which may have a bearing on the case for taking the decision relating to termination of the pregnancy.

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