Mother's Choice & Quality Of Unborn Child's Life Deciding Factors For Final Decision: Delhi High Court On Termination Of Pregnancy With Fetal Abnormalities

The Delhi High Court on Tuesday ruled that ultimate choice in the pregnancy cases involving fetal abnormalities is of the mother and emphasised that the medical boards in such cases must give qualitative reports.

"In conclusion, the Court holds that 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," said Justice Prathiba M. Singh in the ruling, while allowing a 26-year-old married woman's plea seeking medical termination of her foetus of over 33 weeks suffering from cerebral abnormalities.

Justice Singh said the opinion of the medical board in such cases of termination of pregnancy is of considerable importance for the assistance of the courts. "Such opinions cannot be sketchy and fragmented. They ought to be comprehensive in nature," said the judge.

The court further said that in such cases, speediness coupled with qualitative reports is of utmost importance.

"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 include medical condition of the fetus. While giving the scientific or medical terminologies, some explanation in laypersons terms as to the effect of such condition ought to be mentioned. Alternatively, medical literature could be an annexed with opinion."

The court added the medical board ought to interact with the woman in a congenial manner, assess her physical and mental condition.

"The same ought to be mentioned in the opinion. The opinion should briefly mention as to what are the risks for the woman in either continuing the pregnancy or undergoing termination. 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," it said.

The court said the right of a pregnant woman to terminate her pregnancy or abort the fetus has been the subject matter of debate across the world.

"This right gives a woman the ultimate choice as to whether to give birth to the child that she has conceived. India is amongst the countries that recognizes this choice of the woman in its law and has even expanded this right in recent time with amendments permitting the termination at an advanced stage under various circumstances," it added.

The court said cases involving fetal abnormalities highlight the severe dilemma that women undergo while taking a decision to terminate the pregnancy.

"Courts are no exception. Judges have to grapple with issues that are not merely factual and legal, but also involve ethical and moral factors," said Justice Prathiba.

The court added that with the emergence of modern technologies to detect abnormalities in an unborn child, the issues surrounding termination and abortion are bound to become more and more complex.

"Such technologies coupled with the unpredictability of the degree of abnormalities, even by medical practitioners, pose challenges to the manner in which society may grow in the future," it said.

Observing that Section 3(2B) of the MTP Act relaxes the conditions of length of pregnancy in cases of "substantial foetal abnormalities", Justice Singh said the 1971 Act does not define as to what constitutes "substantial foetal abnormalities" and thus the Court is required to take the assistance of external material for interpreting the said expression.

Accordingly, it took note of the terminology and definitions mentioned in Abortion Act, 1967 (United Kingdom), Northern Ireland, The Abortion (Northern Ireland) (No. 2) Regulations 2020 and USA/Florida, Title XXIX Public Health, Chapter 390 Termination of Pregnancies.

"A perusal of the above definitions would show that some of the 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," the court said.

Justice Singh said that 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. 

"An overall analysis of the judicial decisions mentioned above would show that Courts have permitted termination of pregnancy even at an advanced stage i.e., even in the ninth month if substantial foetal abnormalities are detected in the foetus. But in all the above cases, the Medical Board gave an opinion in favour of termination of the pregnancy," it added.

While allowing the woman's petition for termination of pregnancy, the court said the medical board in the present case unfortunately has not been able to give a categorical opinion as to the degree of handicap or as to the quality of the child after birth, with certainty.

"In the mind of the court, such unpredictability and risk ought to weigh in favor of the woman seeking termination of pregnancy. In the conversation between the court and the petitioner, the court has clearly been able to gauge the mental trauma affecting the parents, their economic and social conditions, as also the fact that the petitioner is taking a cautious and well informed decision while seeking termination of pregnancy. She has understood as to what the initial pregnancy entails at such an advanced stage. This court is convinced that as a mother she has weighed the same with the unpredictability and the risks involved considering the condition of the fetus."

Justice Singh added that these factors, though may not be strictly relevant under Section 3(2B) of the MTP Act, 1971 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,"

The court further said there exists considerable doubt and risk involved in the unborn child's chances of leading a dignified and a self sustaining life based upon the medical evidence on reports.

"Considering this position, this court holds that the medical termination of pregnancy ought to be permitted," Justice Singh said, while allowing the petition.

It passed following directions:

• The petitioner is permitted to undergo the procedure for medical termination of pregnancy immediately at the LNJP hospital, or the GTB hospital or an approved medical facility of choice as per Section 4, under the supervision of a properly constituted medical team.
• Prior to undergoing the procedure for medical termination of pregnancy, the petitioner shall once again be informed of the procedure being undertaken and her informed consent for the same will be obtained.
• The petitioner shall undergo medical termination, at her risk, as to the consequences of the same.

The woman in the petition filed last week said that although she underwent various ultrasounds since the inception of her pregnancy, a cerebral abnormality was found in the foetus only on November 12. The abnormality was confirmed by another ultrasound conducted at a private facility on November 14.

On Monday morning, the court rapped the LNJP hospital for delaying the medical examination of the woman. It had last week directed the hospital's medical board to examine the woman on Friday and file a report by December 5.

The report was submitted to the court in the evening stating that the medical board has not recommended medical termination of pregnancy.  Perusing the same, Justice Singh called the report "very sketchy".

During the hearing held around 5:30 PM on Monday, a neurosurgeon, who was part of the medical board which examined the woman, told the court that it cannot be predicted if the newborn will be mentally handicapped or not.

It was the petitioner's case that Bombay High Court and Calcutta High Court in similar cases have allowed termination of pregnancy under Section 3(2B) and 3(2D) of MTP Act

As per section 3(2)B of the Medical Termination of Pregnancy Act, the provisions relating to the length of the pregnancy shall not apply to the termination of pregnancy where it is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

Advocates Anwesh Madhukar, Prachi Nirwan, Pranjal Shekhar and Yaseen Siddiqui appeared for the petitioner.

Title: MRS. X v. GNCTD & ANR.

Citation: 2022 LiveLaw (Del) 1145

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