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Medical termination of pregnancies can be allowed even where duration of the pregnancy has exceeded 24 weeks: High Court of Delhi

A pregnant woman should have a right to seek medical termination of pregnancy not only when the foetus is diagnosed with substantial abnormalities by the Medical Board, but also when forcibly continuing the pregnancy is likely to cause grave injury to her mental health. Question as to termination of pregnancy where duration of pregnancy has exceeded 24 weeks was examined by High Court of Delhi, containing Justice Rekha Pallli in the matter of Sangeeta Thapa vs. Govt. of NCT of Delhi & Ors. [W.P.(C) 15241/2021] on 07.01.2022.

The facts of the case are that the petitioner sought medical termination of her pregnancy on the ground that the foetus is suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis. In case the pregnancy is taken to its logical conclusion, then as per medical opinion, the child is not likely to survive beyond one year, and that too with continued medical assistance, which will not only cause severe harm to her physical, but mental health as well. When she went for a scheduled check up in the 24th week of her pregnancy that the Ultrasound Report (USG) showed the lateral ventricle size as 1.2 cm, which is more than the normal size, and thus, an anomaly was detected in the foetus for the first time. She was subsequently advised to consult a specialist and get some further tests done. Once this condition of the foetus came to light, the petitioner was referred by her gynaecologist to Lok Nayak Jay Prakash Hospital, (LNJP) a government hospital for further consultation, where she was explained, after analysis of her QF-PCR and Chromosomal Microarray Cytoscan 750K test reports, that the defect in the foetus was a critical one and the chances of survival of the new born children with the condition of Edward Syndrome is even otherwise less than 50% in the first week of birth, whereas 90% of the babies born with the syndrome are likely to die in the first year of birth itself. Once this condition of the foetus came to light, the petitioner was referred by her gynaecologist to Lok Nayak Jay Prakash Hospital, (LNJP) a government hospital for further consultation, where she was explained, after analysis of her QF-PCR and Chromosomal Microarray Cytoscan 750K test reports, that the defect in the foetus was a critical one and the chances of survival of the new born children with the condition of Edward Syndrome is even otherwise less than 50% in the first week of birth, whereas 90% of the babies born with the syndrome are likely to die in the first year of birth itself.

The Counsel for the petitioner submitted that forcing the petitioner to go through this pregnancy despite her knowing fully well that the child she gives birth to will most likely not survive beyond the first year, will take an immense toll on her mental wellbeing, and thus defeat the very purpose of the MTP Act. She contends that the MTP Act allows women to terminate their pregnancies even after 24 weeks gestation period, if it is found that the continuance of the same is likely to cause grave injury to her physical or mental health.

The Counsel for the respondent submitted is not in a position to dispute the fact that as per medical opinion the foetus suffers from such substantial medical abnormalities, that even if the petitioner is compelled to give birth, the child is not likely to survive beyond the first year. She, however, opposes the petition by contending that now that the petitioner has reached an advanced stage of her pregnancy, no permission for termination thereof ought to be granted, especially since as per medical opinion, there are certain inherent risks the petitioner herself faces if she is allowed to terminate her pregnancy at this stage.

The High Court of Delhi held that it is evident that the Legislature was conscious that a pregnant woman should have a right to seek medical termination of pregnancy not only when the foetus is diagnosed with substantial abnormalities by the Medical Board, but also when forcibly continuing the pregnancy is likely to cause grave injury to her mental health. A plain reading of sections 3(2)(b)(i), 3(2)(b)(ii) and 3(2B) of the MTP Act together clearly indicates that medical termination of pregnancies can in certain situations be allowed even where duration of the pregnancy exceeds 24 weeks. The Court was of view that if the petitioner is forced to continue with the pregnancy, she will not only constantly live with the fear that the odds of giving birth to a stillborn but even if the infant is born alive, she will be raising the child with heavy pain knowing that she could lose the child forever within a few months. Not to mention that the child will be born with such substantial abnormalities that living a normal life may never be an option, thus causing grave hardship to the child as well as putting the petitioner. It is thus a clear case where, leaving aside the lifelong anguish and trauma which may be caused to the petitioner, the foetus itself suffers from such abnormalities that it clearly falls under the ambit of section 3(2B) of the MTP Act. Thus, Court held the case to be a fit case where the petitioner should be granted permission to undergo medical termination of her pregnancy at a medical facility of her choice. However, the same would be done at her own risk and consequences. The writ petition was, accordingly, disposed of in the aforesaid terms.

Judgment reviewed by Shristi Suman. click to read judgment

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