'Remote Chances Of Child Surviving Or Leading A Normal Life': Calcutta HC Allows Medical Termination Of Approx 35 Weeks Old Foetus

In a significant development, the Calcutta High Court on Thursday allowed termination of 34 weeks 6 days old foetus of a woman after taking into consideration that there are remote chances of the child surviving or leading a normal life.

The Court also underscored that there are risks to the health of both the mother and the child if medical termination of the pregnancy is not permitted. 

Justice Rajasekhar Mantha was adjudicating upon a plea moved by the petitioner seeking medical termination of the pregnancy on the ground that a large number of medical complications have been detected by three medical practitioners which are affecting the health of the petitioner as well as the foetus. 

It may be noted that the Central government on October 12, 2021 had notified the Medical Termination of Pregnancy (Amendment) Rules, 2021 which extended the gestational limit for termination of a pregnancy from 20 to 24 weeks for certain categories of women. 

The Court previously had directed the Director of IPGME&R, (SSKM Hospital), Kolkata to constitute a medical board as per the provisions of the Medical Termination of Pregnancy Act, 1971 and accordingly submit a medical opinion before the Court. 

The Court took on record the medical report dated February 15, 2022 submitted by the Medical Superintendent-cum-Vice Principal, IPGMER-SSKM Hospital, Kolkata envisaging the medical opinion of a team of nine senior doctors and accordingly observed on Thursday, 

"The medical report it is clear and explicit, that there are remote chances of the child being born out of the instant pregnancy surviving or leading ay normal life. The risks to the mother as well as the child are also highlighted in no uncertain terms. Considering the entire gamut of facts and circumstances, this Court permits the petitioner to medically terminate her pregnancy at an authorized hospital and/or medical facility."

Opining that the doctors had unequivocally expressed that the likelihood of a healthy child being born out of this pregnancy is remote, the Court underscored further,

"An unequivocal view expressed by such doctors is that the likelihood of a healthy child being born out of this pregnancy is remote. Even if a child is born, the chances of survival are slim. It is also opined that even if a child is born by medical intervention, it is likely to develop severe impairments and long term ailments and would have limited mortality."

The petitioner as well as her husband had also carefully considered the medical report and had subsequently affirmed on oath that they are desirous of medically terminating the pregnancy. Furthermore, the petitioner had orally indicated to the Court that she is aware of all medical consequences both on the child and herself if the pregnancy is taken to term or if the child is delivered prematurely.

Furthermore, they had also sworn on affidavit that notwithstanding uncertainty in course of surgery of this nature, and notwithstanding the consequences on the health of the petitioner and future consequences clearly indicated in the medical report, they wish to proceed with termination of the pregnancy.

They had also unequivocally acknowledged before the Court that they shall not hold any medical practitioner, or any of the advocates including their own liable for any consequences that may arise out of the procedure of medical termination of pregnancy.

"The risks and consequences to the petitioner, that would follow in course of such procedure i.e. for terminating of pregnancy at this stage have also been clearly indicated and the petitioner as well as her husband have carefully considered the same and have accepted such risks. It also appears that there is no serious risk to the life of the petitioner", the Court further recorded in its order. 

Reliance was also placed on the Supreme Court decision in Sarmishtha Chakrabortty and another v. Union of India Secretary and others wherein the Apex Court had allowed the termination of a 26 weeks old foetus. 

Accordingly, the Court allowed the medical termination of the pregnancy. 

The petitioner has been represented by Advocates Sutapa Sanyal and Subhajit Dan. Senior advocate Amitesh Banerjee and advocates T.M. Siddiqui and Nilotpal Chatterjee represented the State. 

 Case Title: Nivedita Basu v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 42

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