Mumbai, January 23
Bombay High Court stated that every woman has the right of choice about whether she wants to continue her pregnancy. A married woman may terminate her 32-week-old unplanned pregnancy if severe abnormalities are detected.
A division bench of Justices Gautam Patel and S G Dige, in its judgment of January 20, a copy of which was made available on Monday, refused to accept the medical board’s view that the even though the foetus has serious abnormalities it should not be terminated as the pregnancy is almost at its fag end.
The woman approached HC in an attempt to terminate her pregnancy. A sonogram had revealed that the foetus was suffering from severe abnormalities. It also indicated that the baby would suffer mental and physical disabilities.
“Given a severe foetal abnormality, the length of the pregnancy does not matter. The petitioner has made an informed decision. It’s not an easy decision. It is her decision, and she alone can make it. 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 pregnancy for delay reasons would not only condemn the foetus and her to a life less than ideal, but also condemn the mother to a future that will almost certainly rob them of all positive attributes of parenthood.
“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.
The petitioner’s foetus is detected with both microcephaly and lissencephaly, and this is what the future portends, the bench said.
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 do not care about the relative positions. 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 judge affirmed the existence of foetal anomaly and its severity as well as the fact that it was late detected.
“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 cure. In more extreme cases, microcephalic babies need intervention almost constantly,” the court said.
The most disturbing thing about lissencephaly is that it depends on how severe the brain malformation is, it said.
The bench found that the medical board failed to consider the couple’s socio-economic situation.
“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.