Calcutta High Court Refuses To Allow Medical Termination Of Pregnancy Of 31 Weeks Old Foetus Suffering From Rare Congenital Heart Defect

The Calcutta High Court on Wednesday refused to allow the plea of a woman seeking medical termination of her 31 weeks old foetus on account of a rare and complex congenital heart defect. The petitioner on October 23, 2021 during her 31 weeks gestation period had discovered through a fetal echocardiography that the the foetus has prognosis of 'hypoplastic left heart syndrome'- a congenital defect that affects normal blood flow through the heart. 

Advocate Saswata Sarkar appearing for the petitioner informed Justice Md. Nizamuddin on Wednesday that a Medical Board comprising 9 specialists had been constituted pursuant to a prior order of the High Court dated October 26, 2021. 

Accordingly, the Court on Wednesday took on record the report of the Medical Board which had advised against the medical termination of pregnancy. Justice Nizamuddin observed, 

"Considering this report of expertise, I am not inclined to consider prayer of the petitioner for termination of pregnancy. Considering the submission of government pleader that the State will take all possible steps for the safety of the child as well as mother and facilitate the admission of the petitioner in SSKM Hospital Calcutta and shall also see that all possible steps are taken for the safety of the mother as well as child and for safe delivery following medical ethics."

During the course of the hearing, advocate Saswata Sarkar vehemently argued for permitting medical termination of the pregnancy by contending that the foetus would not survive if it sees the light of the day due to the congenital heart defect. He also pointed out to the Court that the Medical Board which had been constituted did not have any pediatric cardiologist. 

He further contended, "My client is ready to go through the process of C-section as well as normal delivery if the doctors deem fit'.

However, the Justice Nizamuddin refused to accept such a plea and further opined that the Court does not have the expertise to make such a determination and would instead rely on the report of the Medical Board. He further orally remarked addressing the counsel, 

"Show me an instance where after 31 weeks Court has allowed..wait for 4 more weeks"

On the other hand government pleader advocate Tapan Mukherjee apprised the Court that all possible arrangements had been made by the State to ensure the immediate admission of the petitioner at SSKM Hospital, Calcutta. 

"We will take all care but we cannot give any guarantee", advocate Mukherjee further remarked. 

Written submissions on behalf of the petitioner 

Through the written submissions filed on behalf of the petitioner, it was pointed out that the Ministry of Health and Family Welfare, Union of India in 2019 had issued a Guidance Note for Medical Boards for Termination of Pregnancy beyond 20 weeks wherein it recommended a list of congenital abnormalities for which termination beyond 20 weeks should be permitted. 

It was further contended that the petitioner has the right to undergo medical termination of pregnancy as per Section 3(2B) of the Medical Termination of Pregnancy (Amendment) Act, 2021 and Rule 4A (3) of the Medical Termination of Pregnancy (Amendment) Rules, 2021. 

"The petitioner has her reproductive choice which is an insegregable part of her personal liberty as envisaged under Article 21 of the Constitution as laid down by the Supreme Court in Suchita Srivastava v. Chandigarh Administartion", it was further contended. 

It was also advanced that forcing the petitioner to go through an unwanted pregnancy violates her right to dignity and sexual and reproductive freedom as guaranteed under Article 21 of the Constitution of India and the International Covenant on Economic, Social and Cultural Rights. 

"Forcing the petitioner to deliver a foetus with no potential to survive due to a rare congenital heart disease, gravely endangers the petitioner's mental and physical health by causing her significantly more mental anguish, trauma and physical pain than she would have to ensure if the MTP Act does not allow her to terminate her pregnancy", it was submitted further. 

The petitioner has been represented by Advocate Saswata Sarkar through Human Rights Law Network (HRLN).