The Bombay High Court ruled that a married woman’s 32-week pregnancy might be terminated if the foetus was found to have significant abnormalities since she had the right to decide whether to carry the pregnancy to term.
In a decision from January 20 that was made available on Monday, a division bench of Justices Gautam Patel and S G Dige declined to accept the medical board’s opinion that the pregnancy should not be terminated even though the foetus had serious abnormalities.
After an ultrasound revealed the foetus had significant abnormalities and that the infant would be born with physical and mental problems, the mother had come to HC seeking to end her pregnancy.
“Given a severe foetal abnormality, the length of the pregnancy does not matter. The petitioner has taken an informed decision. It is not an easy one. But that decision is hers, and hers alone to make. The right to choose is of the petitioner’s. It is not the right of the Medical Board,” the court said in its order.
The HC stated that refusing to terminate a pregnancy solely on the basis of delay would almost definitely rob the woman of every benefit of parenthood in addition to subjecting the baby to a life that is less than ideal.
“It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today there is no possibility of having a normal healthy baby at the end of this delivery,” the court said.
“Accepting the Medical Board’s view is 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,” it added.
Both microcephaly and lissencephaly were found in the foetus of the petitioner, and the bench predicted that this would continue into the future.
Asserting that the rights of the woman should never be compromised in the “blind application of a statute”, the court 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.”
It said cases such as this often raise profound moral questions and dilemmas, but it is immutable that the “arc of the moral universe always bends towards justice”. The bench said the existence of the foetal anomaly, as well as its severity, was certain as also the fact that it was detected late.
“Because it is difficult to predict at birth what problems will occur, microcephalic babies need constant and regular follow up and check-ups with health care providers. There is no known cure or standard treatment for it. In more extreme cases, microcephalic babies need intervention almost constantly,” the court said. Most disturbingly, the prognosis for children with lissencephaly depends on the degree of brain malformation, it added.
The bench noted the medical board did not take into account the social and economic position of the couple.
“It ignores their milieu entirely. 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,” the HC said.
“The Board really does only one thing: because late, therefore no. And that is plainly wrong, as we have seen,” the court said while allowing the pregnancy to be terminated.
HC allows termination of 32-week pregnancy with foetal abnormalities, says it’s the woman’s ‘right to choose’
The Bombay High Court ruled that a married woman’s 32-week pregnancy might be terminated if the foetus was found to have significant abnormalities since she had the right to decide whether to carry the pregnancy to term.
In a decision from January 20 that was made available on Monday, a division bench of Justices Gautam Patel and S G Dige declined to accept the medical board’s opinion that the pregnancy should not be terminated even though the foetus had serious abnormalities.
After an ultrasound revealed the foetus had significant abnormalities and that the infant would be born with physical and mental problems, the mother had come to HC seeking to end her pregnancy.
“Given a severe foetal abnormality, the length of the pregnancy does not matter. The petitioner has taken an informed decision. It is not an easy one. But that decision is hers, and hers alone to make. The right to choose is of the petitioner’s. It is not the right of the Medical Board,” the court said in its order.
The HC stated that refusing to terminate a pregnancy solely on the basis of delay would almost definitely rob the woman of every benefit of parenthood in addition to subjecting the baby to a life that is less than ideal.
“It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today there is no possibility of having a normal healthy baby at the end of this delivery,” the court said.
“Accepting the Medical Board’s view is 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,” it added.
Both microcephaly and lissencephaly were found in the foetus of the petitioner, and the bench predicted that this would continue into the future.
Asserting that the rights of the woman should never be compromised in the “blind application of a statute”, the court 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.”
It said cases such as this often raise profound moral questions and dilemmas, but it is immutable that the “arc of the moral universe always bends towards justice”.
The bench said the existence of the foetal anomaly, as well as its severity, was certain as also the fact that it was detected late.
“Because it is difficult to predict at birth what problems will occur, microcephalic babies need constant and regular follow up and check-ups with health care providers. There is no known cure or standard treatment for it. In more extreme cases, microcephalic babies need intervention almost constantly,” the court said.
Most disturbingly, the prognosis for children with lissencephaly depends on the degree of brain malformation, it added.
The bench noted the medical board did not take into account the social and economic position of the couple.
“It ignores their milieu entirely. 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,” the HC said.
“The Board really does only one thing: because late, therefore no. And that is plainly wrong, as we have seen,” the court said while allowing the pregnancy to be terminated.
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