Reproductive choice dimension of personal liberty: Delhi HC allows termination of 28 weeks foetus

New Delhi: The Delhi High Court has permitted a 28-week pregnant woman to undergo medical termination of pregnancy on account of substantial foetal abnormality and said that reproductive choice is a dimension of personal liberty which is enshrined in Article 21 of the Constitution.

Justice Jyoti Singh, while allowing the woman's plea to undergo the procedure, stated that allowing the pregnancy to continue would have a deleterious impact on the petitioner's mental health and she cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in view the medical board's opinion.

The judge observed that the lack of compatibility of the foetus with a healthy and normal life was "looming large" as in view of the medical experts, the child would require cardiac surgery in the initial stage of life as well as repeat cardiac surgeries in late adolescence or adulthood, leaving his/her entire life dependent on the clinical condition and quality of medical care.

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It further noted that the child would be exposed to "intra and post-operative complications and may lead to further complexities" which would adversely impact the quality of the life and the opinion of the experts that the child was "likely to have an average physical growth" came with a caveat that the surgical repair is successful.

"The petitioner, in my view, is justified in contending that continuing with the pregnancy, once it is known that the foetus suffers from a rare congenital heart disease, which is a 'substantial foetal abnormality', with attendant complications and risks, would have a deleterious impact on the mental health of the petitioner," the court said in its order passed on December 31.

The court permitted the petitioner to undergo medical termination of pregnancy at a medical facility of her choice and recorded that the medical board constituted in the case has explained the possible complications of the procedure of termination at this stage to the couple.

"As repeatedly held by the Courts... reproductive choice is a facet of reproductive rights of a woman and a dimension of her 'personal liberty', enshrined in Article 21 of the Constitution of India and thus the petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board," the court said.

"It is for the petitioner to take the final decision to undergo the procedure of medical termination of pregnancy, which would be at her own risk and consequences," it clarified.

In the present case, the foetus was diagnosed with the existence of Tetralogy of Fallot with Absent Pulmonary Valve Syndrome which includes a hole in the heart along with a poorly developed valve that guards the blood vessel taking blood from the right side of the heart to the lungs.

The petitioner, represented by advocate Sneha Mukherjee, had moved the court in December for permission to undergo medical termination of her pregnancy under the Medical Termination of Pregnancy (MTP) Act, claiming that the foetus suffered from abnormalities of the heart and chances of survival were remote.

On December 22, the court had asked AIIMS to set up a medical board at the earliest for the examination of the woman.

The petitioner had argued that not permitting her to undergo medical termination of pregnancy would put her through financial, emotional as well as physical strain.

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