Foetus with severe cardiac anomaly, but pregnancy beyond 24 weeks: Can a mother be permitted for termination of pregnancy? Del HC explains in light of ‘mental health’ of mother

Delhi High Court: While explaining whether a pregnant woman can seek termination of pregnancy beyond 24 weeks, Jyoti Singh, J. (Vacation Judge) found the mental health of the petitioner to be an essential factor for allowing termination of pregnancy.

Petitioner was 33 years old and had been undergoing regular checkups from the 5th week of her pregnancy. From the ultrasonography report conducted during the 20th week of gestation, it was revealed that there was choroid plexus cyst in the left lateral ventricle of the foetus. However, since the foetus was only 20 weeks old, foetal echocardiography was not performed. On completion of 24 weeks, foetal Echo-Doppler test was done, and various anomalies were found in the heart of the foetus.

After taking opinions from various doctors, it was found that the survival of the infant would be 50% in the very first year of their birth and even if they do survive the first year, repeated surgeries would have to be carried out and success of the surgeries would depend upon the stimuli of the baby to the environment.

Further, since the permissible limit of 24 weeks under the Medical Termination of Pregnancy (Amendment) Act, 2021 was over, the petitioner approached this Court seeking direction from the respondents to allow her to undergo medical termination of pregnancy.

Court had directed respondent 3/AIIMS to constitute a Medical Board to examine the petitioner, who had on the said date completed 28 weeks of pregnancy, to furnish its report regarding the necessity and feasibility of medical termination of the pregnancy.

The gist of the medical board’s opinion was also that the foetus had substantial abnormalities.

Analysis, Law and Decision

High Court observed that the petitioner in the present matter had completed 28 weeks of pregnancy, which was beyond the maximum period of 24 weeks, permissible under the MTP Act and therefore, on account of the proscription in Section 3 of the MTP Act, the petitioner had approached the Court, seeking directions to the respondents to allow the petitioner to undergo medical termination of the pregnancy.

The only focal point of the matter was that the petitioner sought pregnancy on account of the fact that the foetus was suffering from a severe cardiac anomaly.

As per Section 3(2)(b)(i) of MTP Act, grave injury to ‘mental health’ of a pregnant woman is a legal ground available to the woman to seek medical termination of pregnancy, with the caveat that the maximum period permissible under the Act, for termination, is 24 weeks.

Petitioner’s counsel took the Court to various decisions wherein cases of substantial foetal abnormalities and/or where the said abnormalities had a consequent impact on the mental health of the pregnant woman, Supreme Court and High Courts, both have permitted medical termination of pregnancy, beyond the statutory cap of 24 weeks.

While referring to a catena of decisions in view of the present matter, Court lastly referred to a judgment of Bombay High Court in XYZ v. State of Maharashtra, 2021 SCC OnLine Bom, 3353, wherein dealing with an identical issue, the Court allowed the petitioner to undergo medical termination of her pregnancy, finding that continuation of pregnancy could cause grave injury to her mental health.

Court noted the medical board’s opinion that the entire life of the child, if born, would largely depend on the clinical condition and quality of medical care provided to the child.

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Hence, High Court held that the mental frame of the petitioner, a mother, taking a tough call to terminate pregnancy, was understandable.

The Bench also added that the above-said circumstances would cause grave injury to the mental health of the petitioner.

Therefore, the petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. [Pratibha Gaur v. GNCTD, 2021 SCC OnLine Del 5573, decided on 31-12-2021]


Advocates before the Court:

For the Petitioner:

Ms. Sneha Mukherjee and

Ms. Surabhi Shukla, Advocates.

For the Respondents:

Ms. Hetu Arora Sethi, Additional Standing Counsel with Mr. Siddarth Aggarwal, Advocate for R-1 & 2.

Mr. Tanveer Oberoi, Advocate for R3.

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