Landmark Decision: HC allows MTP of 34 weeks 6 days old foetus

Kolkata: In first of its kind decision The Calcutta high court on Thursday allowed a petitioner to terminate her 34 weeks 6 days old, which is one of the longest pregnancy to receive a legal abortion sanction after considering the plea which stated there is a very less chance of the child being able to survive or it might develop long term disabilities, with limited period of survival. 

The infant was suffering from Spina Bifida (an incurable disorder), as per doctors. The baby born with such condition cannot move or perform normal life functions and won't survive beyond few weeks, reports  TOI.

Spina Bifida is a Neural Tube Defect that occurs when the spine and spinal cord don't form properly. Neural tube is the structure in a developing baby that eventually forms the brain, spinal cord and the tissues that enclose them.

The court comprising of a single judge bench of Justice Rajasekhar Mantha  also noted that there is a chance of the health of both the child and mother being in danger if the medical termination of pregnancy is not allowed, as per a media report in the Live Law. 

Also Read:Foetus' life could not be placed at higher pedestal than mother's: HC permits termination of 26 weeks pregnancy

The petitioner and her husband had filed a plea before the court seeking the MTP (medical termination of the pregnancy), reasoning that a number of medical complications were found by three medical  practitioners, subsequently affecting the health of the child and the mother. 

The court had earlier instructed the director of IPGME&R, (SSKM Hospital), Kolkata to create a medical board as per the provisions of the Medical Termination of Pregnancy Act, 1971 and submit a medical opinion before the Court accordingly. 

 The medical report submitted by the Medical Superintendent-cum-Vice Principal, IPGMER-SSKM Hospital, Kolkata dated February 15, 2022 was taken on record by the court, which also had the medical opinion of a team of nine senior doctors. The court said, "the medical report it is clear and explicit, that there are remote chances of the child being born out of the instant pregnancy surviving or leading a normal life. The risks to the mother as well as the child are also highlighted in no uncertain terms."

Relying on the medical opinions submitted, the court further observed, "An unequivocal view expressed by such doctors is that the likelihood of a healthy child being born out of this pregnancy is remote. Even if a child is born, the chances of survival are slim. It is also opined that even if a child is born by medical intervention, it is likely to develop severe impairments and long term ailments and would have limited mortality."

The medical report was carefully considered by the petitioner and her husband and had eventually affirmed on oath that they are desirous of medically terminating the pregnancy. The petitioner orally stated in the court that she is aware of all medical consequences both on the child and herself if the pregnancy is taken to term or if the child is delivered prematurely. 

The petitioners sought to proceed with the pregnancy termination, where they had submitted an affidavit stating the same despite of the uncertainty in course of surgery of this nature and consequences on the health of the petitioner and future consequences clearly indicated in the medical report. 

The court observed that "the petitioner and her husband have unequivocally acknowledged before this Court that they shall not hold any medical practitioner, or any of the advocates including there own and any court of any consequences that may arise out of the procedure of medical termination of pregnancy."

"The risks and consequences to the petitioner, that would follow in course of such procedure i.e. for terminating of pregnancy at this stage have also been clearly indicated and the petitioner as well as her husband have carefully considered the same and have accepted such risks. It also appears that there is no serious risk to the life of the petitioner, " said the court. 

 The court relied on the judgement of the Supreme Court decision in Sarmishtha Chakrabortty and another v. Union of India Secretary and others wherein the Apex Court had allowed the termination of the 26 weeks old foetus, reports the Live Law. 

Thus, allowing the termination of the pregnancy, the court observed, "Considering the entire gamut of facts and circumstances, this Court permits the petitioner to medically terminate her pregnancy at an authorized hospital and/or medical facility."

Advocates Sutapa Sanyal and Subhajit Dan represented the petitioners, whereas the state was represented by senior advocate Amitesh Banerjee and advocates T.M. Siddiqui and Nilotpal Chatterjee.

Union government had notified the Medical Termination of Pregnancy (Amendment) Rules, 2021 on October 12, 2021 extending the gestational period from 20 to 24 weeks for certain categories of women for the medical termination of the pregnancy. 

Also Read:Set up Medical boards as required under MTP Act: Bombay HC tells Govt