“Ultimate decision is choice of mother": Delhi HC allows woman to terminate 33-weeks pregnancy as fetus suffered cerebral abnormalities

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Synopsis

Justice Prathiba M. Singh ruled that the ultimate decision in pregnancy cases involving fetal abnormalities is of the mother as "also the possibility of a dignified life for the unborn child".

The Delhi High Court on Tuesday allowed a 26-year-old woman to undergo medical termination of 33-weeks pregnancy as the fetus suffered abnormalities.

Justice Prathiba M. Singh said, “The right of a pregnant woman to terminate her pregnancy or abort the fetus has been the subject matter of debate across the world, and it gives a woman the ultimate choice as to whether to give birth to the child which she has conceived. India is amongst the countries that recognize this choice of the woman, in its law, and has even expanded this right in recent times with amendments permitting termination at an advanced stage, under various circumstances.”

The single-judge bench held, “The ultimate decision in such cases ought to recognize the choice of the mother, as also, the possibility of a dignified life for the unborn child.”

The court was hearing a plea filed by a married-woman seeking medical termination of her 33-weeks fetus, which suffered from cerebral abnormalities.

The court allowed the termination with the following directions:

  • The woman is permitted to undergo the procedure for medical termination of pregnancy immediately at the LNJP Hospital, the GTB Hospital, or another approved medical facility of her choice, as specified in Section 4, under the supervision of a properly formed medical team.
  • Prior to undergoing the procedure for medical termination of pregnancy, she must be informed of the procedure again, and her informed consent must be obtained.
  • She shall agree to the medical termination of her pregnancy at her own risk in terms of the consequences.

Justice Singh had a conversation with the petitioner woman, and opined: “The court has been able to gauge the 'mental trauma affecting the parents', their economic and social conditions, as also, the fact that she is taking a cautious and well-informed decision while seeking termination of pregnancy.”

The court stated that the likelihood of the child being born with deformities and living with deformities, combined with the risks of surgery at such an early stage after birth, the results of which are also unknown, and the lingering question of whether the child would be self-sustaining or not, sways the decision in favor of the petitioner.

The court also acknowledged the severe dilemma that women undergo while deciding to terminate her pregnancy and added that even the Judges in such cases have to grapple with issues that are not merely factual and legal but also involve ethical and moral factors.

Justice Singh observed, “With the emergence of modern technologies to detect abnormalities in an unborn child, the issues surrounding termination and abortion are bound to become more and more complex. Such technologies coupled with the unpredictability in ascertaining the degree of abnormalities, even by medical practitioners, pose challenges to how society may grow in the future”.

The court stressed the importance of the Medical Board’s assistance and stated that their opinion cannot be “sketchy” and “fragmented”, they ought to be comprehensive. Additionally, the court stated that in such cases, speediness coupled with qualitative reports is of utmost importance.

Accordingly, the court stated that certain standard factors should be kept in mind by the Medical Board while giving opinions in such cases. The factors are:

  1. Medical condition of the fetus – While giving the scientific or medical terminologies, some explanation in layperson terms as to the effect of such condition ought to be mentioned. Alternatively, medical literature could be annexed with the Opinion;
  2. Medical condition of the woman – The Medical Board ought to interact with the woman in a congenial manner, and assess her physical and mental condition. The same ought to be mentioned in the Opinion.
  3. Risks involved for the woman – The Opinion should briefly mention as to what are the risks for the woman in either continuing the pregnancy or undergoing termination.
  4. Any other factors to be considered – The Opinion should bring to the notice of the Court any other relevant factor/s which may have a bearing on the case for taking the decision relating to termination of the pregnancy.

Conclusively, the court held, “Keeping in mind these two factors, the Court comes to the conclusion that the mother’s choice is being made in a completely bona fide manner. There is considerable doubt and risk involved in the unborn child’s chances of leading a dignified and self-sustaining life, based on the medical evidence and reports. Considering this position, this Court holds that the medical termination of pregnancy ought to be permitted in the present case.”

Case Title: Mrs. X v. GNCTD & Anr.