Delhi HC allows terminating 33-week pregnancy with fetal cerebral deformity

New Delhi: The Delhi High court on Tuesday granted permission to a 26-year-old woman seeking approval for termination of pregnancy of a 33-week foetus suffering from a cerebral deformity. The petitioner is permitted to undergo termination immediately at the Lok Nayak Jai Prakash Narayan (LNJP) Hospital or any other hospital of her choice.

Although the medical board gave a negative report denying the termination of the pregnancy, Justice Prathiba M Singh, after hearing the submissions and perusing the report, allowed the women to terminate her fetus ruling that it is the ultimate choice of the mother in the pregnancy cases involving fetal abnormalities and medical boards must provide qualitative reports regarding any sensitive issue.

Also Read:Delhi HC directs LNJP Hospital to examine pregnant woman seeking termination of 33-week fetus

The medical board at LNJP has declined to undergo termination of pregnancy in view of complications.

Justice Singh, after perusing the report, said that if they are unable to predict the degree of disability then how can they be sure that there will be any disability.

Criticising the medical board for their lack of insight and uncertainty into the matter, the court said the board should emphasise the issue carefully as 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. 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," said the court. 

Advocate Aneesh Madhukar submitted to the court that the cerebral deformity has been identified. The child is not going to be a normal child after delivery. He also submitted that the doctors at GTB Hospital did not deny to terminate the pregnancy, they only asked for an order from the court.

According to the live law, the court highlighted the importance of the rights of the mothers to take decisions regarding their pregnancy cases and that the medical board must interact with the woman in a congenial manner, and assess her physical and mental condition.

"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 times with amendments permitting the termination at an advanced stage under various circumstances," it added.

Adding that the topic of abortion has been always a debate across the globe, the court said the matter is equally stressful for both the mother and the judge to whose ruling will determine the future of the person.

"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."In the mind of the court, such unpredictability and risk ought to weigh in favor of the woman seeking termination of pregnancy. In the conversation between the court and the petitioner, the court is clearly been able to gauge the mental trauma affecting the parents, their economic and social conditions, as also the fact that the petitioner is taking a cautious and well informed decision while seeking termination of pregnancy. She has understood as to what the initial pregnancy entails at such an advanced stage. This court is convinced that as a mother she has weighed the same with the unpredictability and the risks involved considering the condition of the fetus," added the court.

The court passed the following directions permitting the termination of the fetus:

• The petitioner is permitted to undergo the procedure for medical termination of pregnancy immediately at the LNJP hospital, or the GTB hospital or an approved medical facility of choice as per Section 4 under the supervision of a properly constituted medical team.
• Prior to undergoing the procedure for medical termination of pregnancy, the petitioner shall once again be informed of the procedure being undertaken and her informed consent for the same will be obtained.
• The petitioner shall undergo to medical termination at your her risk as to the consequences of the same.

The counsel for the petitioner said that the possibility of the normal delivery is concerned it may get complicated during the procedure. He also said that as far as cerebral dysfunction is concerned when the child is born he would not be a normal one.

The court asked the counsel for Delhi Government to get the doctors along with a neurologist to join the proceedings.

Neurologist Dr Chandra Shekhar who joined through video conferencing said that the child would survive but the quality of life cannot be predicted. The child can be operated upon after adequate time after delivery. It would be a normal surgery.

Dr Rachna Sharma also joined virtually and said the child would be delivered normally through medicine, if it does not work then they would go for surgery. This is not an abortion, it would be delivery, and there are chances of the child surviving.

The court on Monday morning pulled the LNJP hospital administration for delaying the examination of a woman who is seeking permission for termination of 33 weeks foetus who is suffering from cerebral abnormality.

On Friday, the High Court directed the medical board at LNJP hospital to examine the woman seeking termination of pregnancy. The hospital was directed to file a report by Monday.

The counsel for the hospital said that there was a delay due to administrative reasons and election duty.

The petitioner submitted that she has undergone periodic ultrasounds and no abnormality was reported. It was the first time on November 11 when the abnormality in the brain of the foetus was found. It was also confirmed by another ultrasound done on November 14.

She approached the GTB Hospital. The termination of her pregnancy shall require judicial intervention since the current gestational age of the petitioner is beyond the permissible limits i.e. 24 weeks as per the Amended Act effective from September 24, 2021.

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