Plea By Woman With Twin Pregnancy For Medical Termination Of One Foetus With Down's Syndrome; SC Directs Medical Board To Add Foetal Expert And Submit Report

In some relief to a woman pregnant with twins seeking medical termination of one foetus as it has been diagnosed with Down's Syndrome, the Supreme Court on Wednesday directed the medical board constituted by the Dean of Sir JJ Group of Hospitals to add an additional member who is a well qualified and competent foetal expert and additionally report whether abortion of one foetus will effect the life of the other foetus and the life of the mother.

The bench of Justice R Banumathi, Justice Indu Malhotra and Justice Aniruddha Bose heard the special leave petition filed by 33-year-old Komal Hiwale, who challenged the order passed by a bench of the Bombay High Court dated May 22, 2020 wherein Komal's petition was dismissed relying upon the opinion of the medical board.

Senior advocate Colin Gonsalves appeared on behalf of the petitioner and informed the bench that the petitioner was already 22 weeks pregnant when the High Court order was passed and since then two weeks have elapsed.

The bench observed-

"If the Board is of the view that the abortion of one foetus can be safely done without affecting either the life of the mother or the second surviving foetus, the Board shall also give its opinion as to the period within which abortion of one foetus would be medically safe for the mother and for the surviving foetus."

Moreover, considering the urgency of the matter, the bench asked the medical board to examine the petitioner at the earliest and communicate its report either by email by Saturday, June 13.

Komal conceived twin embryos after ovarian stimulation wherein one of the foetus has been detected to have Down's syndrome by tests dated May 8 and confirmed by a second opinion dated May 11. Since the petitioner has been advised that Down's syndrome is untreatable chromosomal anomaly with substantial risk of mental/physical disabilities, she is desirous of an abortion of the foetus with Down's syndrome and normal delivery for the other foetus. Thus a writ petition was filed before the High Court when the petitioner was 21 weeks pregnant

After perusing through the report submitted by the medical board, the bench of Justice RD Dhanuka and Justice Abhay Ahuja observed-

"It is clear from the above Observations and Opinion of the Obstetrician & Gynecologist that if at all the diseased foetus is sought to be terminated, the risk of such selective termination could result in abortion of the other foetus or even abortion of the wrong foetus as there is no specific differentiating feature and it becomes difficult to identify the affected foetus between the two fetuses. The procedure could also damage the other foetus without death. There can be growth restriction of the remaining foetus. Also, the above opinion clearly indicates risk to the physical and mental health of the mother, in the event the selective termination is undertaken such as pre-term labour, potential hemorrhage, infection, DIC due to retained products of conception and depression."

While dismissing the petition, High Court had advised the petitioner mother to take the pain and effort of caring for a child with Down's syndrome rather than to run the reported risk of losing the other foetus and also the risk of harm to her own physical and mental health.

The next date of hearing in the case is June 15.