Mother's Choice & Quality Of Unborn Child's Life Deciding Factors For Final Decision: Delhi High Court On Termination Of Pregnancy With Fetal Abnormalities

The Delhi High Court on Tuesday ruled that ultimate choice in the pregnancy cases involving fetal abnormalities is of the mother and emphasised that the medical boards in such cases must give qualitative reports."In conclusion, the Court holds that 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," said Justice Prathiba M. Singh in the ruling, while allowing a 26-year-old married woman's plea seeking medical termination of her foetus of over 33 weeks suffering from cerebral abnormalities.BREAKING: Delhi High Court today 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." pic.twitter.com/pFy10FVH9Y— Live Law (@LiveLawIndia) December 6, 2022Justice Singh said the opinion of the medical board in such cases of termination of pregnancy is of considerable importance for the assistance of the courts. "Such opinions cannot be sketchy and fragmented. They ought to be comprehensive in nature," said the judge.The court further said that in such cases, speediness coupled with qualitative reports is of utmost importance. "There ought to be some standard factors on which the opinion should be given by the board to whom such cases are referred. Such factors ought include medical condition of the fetus. While giving the scientific or medical terminologies, some explanation in laypersons terms as to the effect of such condition ought to be mentioned. Alternatively, medical literature could be an annexed with opinion."The court added the medical board ought to interact with the woman in a congenial manner, assess her physical and mental condition. "The same ought to be mentioned in the opinion. The opinion should briefly mention as to what are the risks for the woman in either continuing the pregnancy or undergoing termination. 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," it said.The court 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."This right gives a woman the ultimate choice as to whether to give birth to the child that she has conceived. India is amongst the countries that recognizes this choice of the woman in its law and has even expanded this right in recent time with amendments permitting the termination at an advanced stage under various circumstances," it added.The court said cases involving fetal abnormalities highlight the severe dilemma that women undergo while taking a decision to terminate the pregnancy. "Courts are no exception. Judges have to grapple with issues that are not merely factual and legal, but also involve ethical and moral factors," said Justice Prathiba.The court added that 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 of the degree of abnormalities, even by medical practitioners, pose challenges to the manner in which society may grow in the future," it said.Observing that Section 3(2B) of the MTP Act relaxes the conditions of length of pregnancy in cases of "substantial foetal abnormalities", Justice Singh said the 1971 Act does not define as to what constitutes "substantial foetal abnormalities" and thus the Court is required to take the assistance of external material for interpreting the said expression.Accordingly, it took note of the terminology and definitions mentioned in Abortion Act, 1967 (United Kingdom), Northern Ireland, The Abortion (Northern Ireland) (No. 2) Regulations 2020 and USA/Florida, Title XXIX Public Health, Chapter 390 Termination of Pregnancies."A perusal of the above definitions would show that some of the definitions are extremely broad and wide, whereas, others are narrow and constricted. The question as to what would constitute "substantial foetal abnormalities" is, thus, dependent not only upon the medical conditions of the foetus, but also, on the broad public policy of the particular State or Country," the court said.Justice Singh said that judicial precedents in India have supported the rights of women to abort or medically terminate the pregnancy, depending upon the gestational period, the medical condition of the foetus, the physical and mental health of the woman, and other such factors. "An overall analysis of the judicial decisions mentioned above would show that Courts have permitted termination of pregnancy even at an advanced stage i.e., even in the ninth month if substantial foetal abnormalities are detected in the foetus. But in all the above cases, the Medical Board gave an opinion in favour of termination of the pregnancy," it...

Mother's Choice & Quality Of Unborn Child's Life Deciding Factors For Final Decision: Delhi High Court On Termination Of Pregnancy With Fetal Abnormalities

Nupur Thapliyal

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