Termination Of Pregnancy After Statutory Period of 20 Weeks: Delhi HC Directs AIIMS To Constitute A Medical Board To Look At Risks Involved [Read Order]

While hearing an urgent plea for termination of pregnancy, the Division Bench of Justice JR Midha and Justice Jyoti Singh directed the Medical Board to submit a report in sealed cover which will include the analysis of the medical abnormality of the foetus, along with its opinion, keeping in view the detailed guidelines mentioned in the Memorandum of Guidelines issued by Minister of Health.

The order has come in a writ petition seeking a direction to the Respondents to permit the Petitioner to medically terminate her pregnancy and also seeking a declaration for declaring Section 3 (2)(B) and Section 5(1) of the Medical Termination of Pregnancy Act as ultra vires of the Constitution.

After undergoing multiple scans, the Petitioner and her husband were informed by the doctors that the child, if born, would require multiple surgeries to cure him and whether the child would be completely cured even after surgeries, is uncertain. It was, however, submitted by the doctors that the extent of medical condition /abnormality in the foetus cannot be completely ascertained at this stage.

Mr Vikas Walia, who appeared for the Petitioner, argued that the Petitioner is about 29 years of age and this is her first pregnancy. Looking at the medical condition of the foetus, it is not advisable that she continues with the pregnancy and gives birth to a child who may after birth suffer various abnormalities.

He further submitted that as per further reports the foetus has also been diagnosed as suffering from echogenic bowel and hepatic calcification. The condition of the foetus is thus a cause of concern for the Petitioner and her husband.

Therefore, Mr Walia argued, a decision has been taken which is in the best interest of the mother and the child that the petitioner undergoes medical termination of the pregnancy.

However, Mr Walia did inform the court that the Petitioner is statutorily restrained from undergoing termination of pregnancy as Section 3(2)(B) and Section 5(1) of the Medical Termination of Pregnancy Act provides for termination of the pregnancy by a registered medical practitioner only if the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks and for the reasons mentioned in the Section.

It was also argued by Mr Walia that the Supreme Court and the High Courts in some cases have issued directions permitting medical termination of pregnancy post 20 weeks, where the circumstances so required.

Counsels appearing for AIIMS, Union of India age the Delhi Government informed the court that they have no objection in examining the petitioner, in order to ascertain the medical condition of the foetus as well as the risk involved in the termination of the pregnancy, at this stage. The court was also informed of the Memorandum issued by the Health Ministry, which provides for the constitution of permanent Medical Boards, with experts in the relevant field. The role of these Boards is to respond to the directions of the Court and examine the woman or a minor girl for termination of pregnancy and submit their reports.

Mr Rajesh Gogna, who appeared for the Central Government, submitted that one of the role of these Medical Boards is to determine through the ultrasound machines etc. if the foetal abnormality is substantial to qualify, as either incompatible with life or associated with significant morbidity or mortality in the child, if born. After the Medical Board has given its opinion the same would then be forwarded to the Court, to enable the Court to take a final decision in the matter.

Regarding the constitutionality of certain provisions of the MTP Act, Mr Gogna argued that the Petitioner shall not pursue such a cause at this stage as the Amendment Bill has already been passed by the Lok Sabha and the same is pending before the Upper House of the Parliament.

In light of these submissions, the court directed AIIMS to constitute a Medical Board and examine the Petitioner and the foetus, to determine the medical condition of the foetus as well as the Petitioner. The said exercise has to be completed within a period of 3 days from the passing of the order.

The court further directed that the Medical Board examining the Petitioner shall also give their opinion on the following:

1. Whether continuance of the pregnancy would involve a risk to the Petitioner or would in any manner lead to deterioration of her physical or mental health?
2. Whether there is any risk if the medical termination of pregnancy is performed at this stage?

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