"Mother Cannot Be Deprived Of Freedom To Take Decision To Continue Or Not Continue With Pregnancy": Delhi HC Allows Termination Of 28 Weeks Foetus

Observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty, the Delhi High Court allowed termination of 28 weeks foetus of a 33 year old woman. The foetus was suffering from various abnormalities including Tetralogy of Fallot (TOF) with Absent Pulmonary Valve Syndrome (APV).

Justice Jyoti Singh also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.

"As repeatedly held by the Courts, in the judgements referred above, reproductive choice is a facet of reproductive rights of a woman and a dimension of her 'personal liberty', enshrined in Article 21 of the Constitution of India and thus the Petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board," the Court said.

Since the permissible limit of 24 weeks under the Medical Termination of Pregnancy Act, 1971 Act, 2021 was over, the Petitioner had approached the Court seeking a direction to the Respondents to allow her to undergo medical termination of pregnancy.

The Court had therefore directed AIIMS to constitute a Medical Board to examine the woman who had completed 28 weeks of pregnancy. The opinion suggested that the child would require follow up in cardiology and cardiac surgery, 2-3 times per year initially and annually thereafter.

It was therefore submitted on behalf of the petitioner that there was a major foetal abnormality in the form of a rare congenital heart disease coupled with the assessment of the Paediatric Cardiologist and Neonatologist and that the chances of successful outcome, if operated in time and optimally managed with regular follow-up, was 80 per cent.

It was added that the Petitioner mother was highly stressed and was not in the correct mental frame of mind to continue with the pregnancy.

Examining the legal position pertaining to termination of pregnancy under the amended MTP Act, 1971, the Court opined thus:

"It is explicitly clear from a plain reading of the provisions of Section 3(2)(b)(i) of MTP Act, as amended, that grave injury to 'mental health' of a pregnant woman is a legal ground available to the woman to seek medical termination of pregnancy, with the caveat that the maximum period permissible under the Act, for termination, is 24 weeks."

"This Court cannot also overlook the opinion of the Board that the child would require cardiac surgery not only in the initial stage of life but may also need a repeat cardiac surgery in late adolescence or adulthood. This entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child's life. While the Board has opined that following surgical repair, patient is 'likely' to have an average physical growth, but the same is with a caveat that the surgical repair is 'successful'. The opinion indicates that the entire life of the child, if born, would largely depend on the clinical condition and quality of medical care provided to the child. Thus, lack of compatibility of the foetus with a healthy and normal life is looming large."

Allowing the petition, the Court granted permission to undergo medical termination of pregnancy at a medical facility of petitioner's choice.

"The Court appreciates the assistance rendered by the Board, who has rendered the medical Reports with commendable promptitude. It is clarified that the Doctors who have put in their opinions as a part of the Board shall have immunity in the event of any litigation arising out of the instant petition," it added.

Title: xyz v. GNCTD

citation: 2022 LiveLaw (Del) 2

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