Are We Only Looking At A Society With Just Perfect Children? Delhi High Court On Ethical Concerns In MTP Cases With Fetal Abnormalities

Hearing a plea moved by a 26-year-old married woman seeking medical termination of her foetus of over 33 weeks suffering from cerebral abnormalities, the Delhi High Court on Monday contemplated over "ethical concerns" in similar cases seeking medical termination of pregnancy with fetal abnormalities.

Justice Pratibha M Singh on the use of technology for examining pregnant women, said that the technology for detecting fetal abnormalities might become more advanced in future, including DNA profiling and conducting IQ test of the foetus.

In this backdrop, the court said: "There is only one ethical concern that the court is thinking of. That is with technology, it is actually very easy to detect a number of abnormalities as of today. We are almost talking of a full term pregnancy. And going forward, technology may become more advanced and you may be able to do DNA profiling of the foetus, may be to do IQ test of the foetus and all that. See, there are so many Acts etc which are created for persons with physical and mental disabilities."

However Justice Singh added: "….today in advanced countries, the level of testing may be even advanced than what is available in India. But that's not very far off that even India will have all these technologies. So I am not taking a view either way but I'm just saying that are we only looking at a society which only have perfect children?"

As the counsel appearing for the petitioner submitted that such a situation will not be possible as most of the people in the country do not have the means to undergo an ultrasound, the court said:

"It is only a question of means then. If the means are provided, should the parents then have a choice of not having the child at all?"

During the course of hearing, the court interacted with the petitioner woman, her husband; neurosurgeon and a senior specialist (gynaecologist) of LNJP Hospital.

Earlier today, the court rapped the hospital for delaying the medical examination of the woman, after it had last week directed the hospital's medical board to examine the woman and file a report by today. 

The report was submitted to the court in the evening stating that the medical board had not recommended medical termination of pregnancy 

Perusing the same, Justice Singh observed that it is very sketchy. 

"Report in this particular case is very sketchy. I must say. Look at the report. And in my experience, from previous reports, they are much more detailed," the court remarked.

The neurosurgeon who had joined the proceedings on virtual conferencing mode told the court that it cannot be predicted if the new born will be mentally handicapped or not.

While the petitioner's counsel relied on a judgment of the Bombay High Court permitting medical termination of pregnancy in a similar case, the court said that the medical report submitted in the said case was clear, which was not the case in hand.

Hearing the submissions made by the counsel appearing for the petitioner as well as the hospital, the court ordered: "List tomorrow for orders at 10:30 [AM]."

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.

It is 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.