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2020 Supreme(Del) 249
IN THE HIGH COURT OF DELHI AT NEW DELHI
HIMA KOHLI, SUBRAMONIUM PRASAD, JJ.
Jyotsna Shingwani - Petitioner
Versus
Union Of India & Ors. - Respondents
W.P.(C) 2967 OF 2020 & CM APPL. 10300 OF 2020
Decided On : 20-04-2020
For the Petitioner:Mr. Vikas Walia, Advocate
For the Respondent:Mr. Rajesh Gogna, Advocate, Ms. Mrinalini Sen, Advocate, Mr. Anand Verma and Mr. Shwetank Singh, Advocates with Dr. Vatsla Dadhwal
A woman's right to make reproductive choices is a dimension of 'personal liberty' under Article 21 of the Constitution of India. Termination of pregnancy can be permitted when there is a risk to the life of the pregnant woman or when the baby would suffer from serious physical or mental abnormalities. The provisions of the Medical Termination of Pregnancy Act, 1971 should be interpreted and applied in a manner that respects a woman's reproductive choices and protects her physical and mental health.
Headnote:
Medical Termination of Pregnancy Act, 1971 - The court analyzes Sections 3(2)(b) and 5(1) of the Act, which allow termination of pregnancy when there is a risk to the life of the pregnant woman or when the baby would suffer from serious physical or mental abnormalities. The court refers to the provisions of the Act and the Supreme Court's previous decisions to interpret and apply the law in the present case. The court also mentions that the Act is proposed to be amended to extend the period for termination of pregnancy from 20 weeks to 24 weeks.
Fact of the Case:
The petitioner, who is in the 23rd week of pregnancy, seeks permission to undergo medical termination of her pregnancy due to the foetus being diagnosed with a serious medical condition. The Medical Board constituted by AIIMS has examined the petitioner and the foetus and provided its opinion. The petitioner and her husband express concerns about the risks and complications associated with the foetus's condition. The court interacts with the petitioner, her husband, and the Chairman of the Medical Board to understand the exact condition of the foetus. The court examines the relevant provisions of the Medical Termination of Pregnancy Act, 1971 and the Supreme Court's previous decisions on termination of pregnancy. The court concludes that given the medical condition of the foetus and the risks involved, the petitioner's request for termination of pregnancy beyond the gestation period of 20 weeks should be allowed.
Finding of the Court:
The court analyzes the provisions of the Medical Termination of Pregnancy Act, 1971, which allow termination of pregnancy in certain circumstances, including when there is a risk to the life of the pregnant woman or when the baby would suffer from serious physical or mental abnormalities. The court refers to previous Supreme Court decisions that recognize a woman's right to make reproductive choices as part of her personal liberty. The court also considers the opinions of the Medical Board and the arguments presented by the parties. The court concludes that in the present case, the foetus's condition poses a substantial risk to its healthy and normal life, and therefore, the rigours imposed by the Act should be relaxed to allow the termination of pregnancy.
Ratio Decidendi: Given the medical condition of the foetus and the risks involved, the court allows the petitioner's request for termination of pregnancy beyond the gestation period of 20 weeks, relaxing the provisions of the Medical Termination of Pregnancy Act, 1971.
Result: The court grants permission to the petitioner to undergo medical termination of her pregnancy beyond the gestation period of 20 weeks due to the serious medical condition of the foetus.
ORDER :
1. The matter has been heard through Video Conferencing.
2. The petitioner, who is currently in the 23rd week of pregnancy, has approached this Court, for an appropriate writ, directing the respondents to allow her to undergo medical termination of her pregnancy. Besides the above relief, the petitioner has also challenged the vires of Sections 3(2)(b) and 5(1) of the Medical Termination of Pregnancy Act, 1971 (in short, ‘MTP Act’). However, we do not propose to go into the aspect of the legality of the aforesaid provisions as on the date of admission of the present petition, learned counsel for the petitioner had submitted that he did not wish to press the challenge the vires of the said provisions.
3. Facts in brief leading to filing of this writ petition are as under:
(a) The petitioner, who is 29 years old, is currently in the 23rd week of her pregnancy. She had got pregnant in the month of November 2019.
(b) On 25.01.2020 and again on 07.02.2020, the petitioner was advised to undergo a Level-II scan, as part of the general process, to check upon the foetus.
(c) As advised, she underwent a Level-II scan in her 21st week of pregnancy, ie., on 03.04.2010.
(d) The report, dated 04.04.2010, reads as under:
"Mrs.Jyotsna Shingwani had her first antenatal visit with us on 4th April' 2020 with Level 2 dated 3rd April suggestive of a large intra abdominal cyst with multiple internal septae (21 weeks +).
Repeat ultrasounds were done, which confirmed the above findings and also echogenic bowel and hepatic calcification. Amniocentesis was done on 8th April and sent for FISH, oncoarray and TORCH PCR. Reports of these are awaited.
The differentials for the above findings include duodenal atresia/meconeum peritonitis or intra uterine infections.
The prognosis of these cannot be judged now. Pediatric surgeon opinion advised. However, the baby may require post natal evaluation and/or surgery which may be of major/prolonged nature. However, the exact nature/etiology of cyst can be known after birth."
4. On receiving report, the petitioner has approached this Court with the instant petition, pleading inter alia that the condition of the foetus that she is carrying, is not compatible with life as per the diagnosis received. She seeks permission to abort the foetus and terminate the pregnancy that has crossed the gestation period of 20 weeks.
5. Vide order dated 15.04.2020, this Court had constituted a Medical Board. Relevant portion of the said order reads as under:-
"15. We have heard learned counsels for the parties. At the outset, we must pen down that the response of all the respondents has been very heartening. Despite the pressure and the burden on the hospitals in the present day time, each of the respondent has graciously offered to examine the petitioner on account of the problems being faced by her. However, a consensus was finally reached between the counsels that the requisite exercise would be undertaken at AIIMS.
16. Accordingly, in the facts and circumstances of the present matter, we deem it fit to direct AIIMS to constitute a Medical Board and examine the petitioner and the fetus, to determine the medical condition of the fetus as well as the petitioner. The entire exercise, as undertaken by the learned counsel for AIIMS, would be completed within a period of three days from today.
17. The Medical Board, besides examining the medical condition of the petitioner and the fetus, would also examine the following issues :
1. Whether continuance of the pregnancy would involve a risk to the petitioner or would in any manner lead to deterioration of her physical or mental health?
2. Whether there is any risk if the medical termination of pregnancy is performed at this stage?
18. The Medical Board will give its report, which will include the analysis of the medical abnormality of the fetus, along with its opinion, keeping in view the detailed guidelines mentioned in the Memorandum issued by the Central Government, as aforementioned. Learned Coun
