'Mother Has Right To Abort When Birth Defects Are Confirmed' : Chhattisgarh High Court [Read Judgment]

The Chhattisgarh High Court has held that if the medical technologies have affirmed lack of development of the foetus and its viability is also in doubt, the woman has a right to call for medical termination of pregnancy.

In the present case, the petitioner, who was pregnant with a 24 weeks old foetus, had approached the court seeking permission to terminate her pregnancy under section 3(2) of the Medical Termination of Pregnancy Act, 1971.

The court, while deliberating upon the matter, relied upon the report of the medical board which stated the following:

'a single live foetus at 24 weeks 06 days gestation with hydrocephalus abnormal spine curvature with large meningocele pleural effusion & abdominal ascities with oligohydramnios seen in uterine cavity wherein foetal skull bones remained unformed, this condition being untreatable and would be certain to cause infant's death during or short after birth and also endanger life of petitioner'

The Single Bench of Justice Bhaduri held that a registered medical practitioner shall not be guilty of any offence if the pregnancy is terminated which satisfies the requirement of sub-section (2) of section 3 of the Act, 1971. The Court observed that having regard to inability of the foetus to be developed as full grown, if the child is born, it would be dependent on the mercy of others and healthy future is unforeseeable.

"there is no doubt that the petitioner has a right to protect and preserve her life and also has a right to see a healthy baby is born which may not subject to neglect and abuse of society. The child also has a right to be healthy and not live his life at scolding & censure of others . The child born with infirmity both mental and physical for all practical purpose would be a burden to himself and hiding spot would not help and expectation of normal behaviour by the society would be contrary to general expectation. When the cutting edge medical technologies have affirmed lack of development of foetus and viability is also on doubt, in such case the mother of child in womb would have the right to call for medical termination of pregnancy to address the problem", observed the Court.

The Court relied on the ratio of the apex court in Meera Santosh Pal & others Versus Union of India and others (2017) 3 SCC 462 which held that a woman's right to make reproductive choices is part of her right to personal liberty under Article 21. The court opined that the petitioner has a right to protect and preserve her life and also has a right to see a healthy baby is born which may not subject to neglect and abuse of society.

The court, therefore, petitioner to undergo the termination of her pregnancy under the provisions of the Act and also directed that the medical board shall keep the complete record of the procedure which is to be performed on the petitioner. 

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