Right to Choose Mother’s Alone, Not Medical Board’s; Court Can’t Abrogate Her Right: Bombay High Court Allows Medical Termination of 33-Week Pregnancy

A division bench of Justices Gautam Patel and Justice SG Dige observed:

“The right to choose is the Petitioner’s. It is not the right of the Medical Board. And it is also not the right of the Court to abrogate the Petitioner’s rights once they are found to fall within the contemplation of the law.”

The court was hearing a petition filed by a married woman, represented by advocate Aditi Saxena, seeking to terminate her pregnancy on account of anomalies found in the foetus like microcephaly (smaller head and brain) and lissencephaly. Mild uteroplacental insufficiency was also noticed. The petitioner contended she is from a humble background and won’t be able to bear the financial expenses of an infant born with such conditions.

Pursuant to the court's earlier orders, a Medical Board of Sassoon Hospital from Pune submitted a report stating that the “deformity" was "correctable at government and major municipal hospitals free of cost” and opined that considering the advanced stage of the pregnancy, termination was not recommended.

However, Advocate Saxena argued that the court wasn’t bound by the recommendations. Under Section 3 of the Medical Termination of Pregnancy Act 1971, the length of the pregnancy wasn’t a criterion in light of severe foetal anomalies. Moreover, the mother was fit to undergo the procedure, she said.

The bench agreed. It noted that the Medical Board had advised against the termination merely because the pregnancy is at an advanced stage. The court, however, said if termination is refused it would not only be condemning the foetus to a less than optimal life, but would also be condemning the mother to a future that would certainly rob her of every positive attribute of parenthood.

“It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today that there is no possibility of having a normal healthy baby at the end of this delivery,” the bench observed.

It added: “In cases such as these, we believe Courts must calibrate themselves to not only the facts as they stand but must also consider that what these cases present are, above all, profound questions of identity, agency, self-determination and the right to make an informed choice.”

The court wondered about what would happen if the petitioner was unable to tend to the child once it was born. “Is she then to be forced to make the next decision, to give up a child in adoption?”

The opinion of the Medical Board is oddly silent on this, the court noted.

“It does not even attempt to envision the kind of life — one with no quality at all to speak of — that the Petitioner must endure for an indefinite future if the Board’s recommendation is to be followed. And that is plainly wrong, as we have seen. Given a severe foetal abnormality, the length of the pregnancy does not matter.”

It further said: “Accepting the Medical Board’s view is therefore not just to condemn the foetus to a substandard life but is to force on the Petitioner and her husband an unhappy and traumatic parenthood. The effect on them and their family cannot even be imagined.”

While commenting on the MTP Act, the court said:

"The Act is of 1971. It was ahead of its time. But in the cold sterility of a legislation, we must discern where justice lies when it is to be applied to the human condition. This is not a case where a blanket invocation of this or that provision will provide an answer. We must ensure above all that the rights of the Petitioner — including those enunciated by the Supreme Court — are never compromised in the sometimes blind application of a statute."

The court also said, "Justice may have to be blindfolded; it can never be allowed to be blindsided. We are agnostic about the relative positions of parties. We can never be agnostic about where justice needs to be delivered."

Last month, Delhi High Court also said that the ultimate choice in pregnancy cases involving fetal abnormalities is of the mother and emphasised that the medical boards in such cases must give qualitative reports.

ABC Vs State of Maharashtra [WRIT PETITION (ST) NO. 1357 OF 2023] 

Citation: 2023 LiveLaw (Bom) 46

Also Read: What Constitutes Substantial Foetal Abnormalities Under Medical Termination Of Pregnancy Act? Delhi High Court Explains

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