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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Pratibha Gaur - Appellant
Versus
Government Of Nct Of Delhi & Ors. - Respondents
Civil Writ Petition No. 14862 of 2021
Decided On : 31-12-2021
MTP Act - Medical Termination of Pregnancy - Section 3(2)(b)(i) - 3(3) - 3(2B) - 3(2C) - 3(2D - The court allowed the petitioner to undergo medical termination of pregnancy beyond the statutory cap of 24 weeks due to the severe cardiac anomaly of the foetus, which was classified as a 'major abnormality' under the Guidelines. The court found that continuing the pregnancy would cause grave injury to the mental health of the petitioner, in line with the judgments of the Supreme Court and various High Courts.
Fact of the Case:
The petitioner, a 33-year-old woman, sought permission to undergo medical termination of pregnancy due to severe foetal abnormalities, specifically Tetralogy of Fallot with Absent Pulmonary Valve Syndrome, diagnosed after 24 weeks of gestation. The medical opinion indicated that the child, if born, would require repeated cardiac surgeries and regular follow-ups, with associated risks and complications.
Finding of the Court:
The court found that continuing the pregnancy would cause grave injury to the mental health of the petitioner, justifying the medical termination of pregnancy beyond the statutory cap of 24 weeks. The court emphasized the reproductive rights of the woman and her freedom to make reproductive choices, recognizing it as a dimension of 'personal liberty' under Article 21 of the Constitution of India.
Issues: The main issue was whether the severe foetal abnormalities justified medical termination of pregnancy beyond the statutory cap of 24 weeks, and whether continuing the pregnancy would cause grave injury to the mental health of the petitioner.
Ratio Decidendi: The court's decision was based on the interpretation of the MTP Act, specifically Section 3(2)(b)(i), in conjunction with the reproductive rights and personal liberty of the woman under Article 21 of the Constitution of India. The court also considered the actual or reasonably foreseeable environment of the pregnant woman in determining the risk of injury to mental health.
Final Decision: The court allowed the petitioner to undergo medical termination of pregnancy at a medical facility of her choice, emphasizing her freedom to make reproductive choices and the grave injury to her mental health if the pregnancy continued.
JUDGMENT
Jyoti Singh, J. - Present writ petition has been preferred by the Petitioner seeking the following reliefs:
"a. For a writ of mandamus or any other writ, order, directing the Respondents to allow the Petitioner to undergo Medical Termination of the Pregnancy.
b. For an order directing the Respondent No. 3 for setting up an expert panel of doctors to assess the pregnancy and offer MTP to the petitioner in need of the procedure beyond the prescribed 20 weeks limit.
c. For any other order/ direction that this Hon"ble Court may deem fit."
2. As per the case set out in the petition, Petitioner is 33 years old and has been undergoing regular check-ups from the 5th week of her pregnancy.
From the ultrasonography report dated 31.10.2021, conducted during the 20th week of gestation, it was revealed that there was choroid plexus cyst in the left lateral ventricle of the foetus. However, since the foetus was only 20 weeks old, foetal echocardiography was not performed. On completion of 24 weeks, foetal Echo-Doppler test was done on 02.12.2021 and various anomalies were found in the heart of the foetus, viz., Tetralogy of Fallot (TOF) with Absent Pulmonary Valve Syndrome (APV), presence of Pulmonary Stenosis and Regurgitation with Narrow Pulmonary Valves, Dilated Branch Pulmonary Artery and Large Malaligned VSD with overriding of Aorta.
3. Thereafter, Petitioner consulted many Doctors, including Paediatric Cardiologists, in different hospitals and as per the last medical opinion received by her on 15.12.2021, infants born with condition of TOF have 50 per cent chance of survival in the very first year of their birth and even if they do survive the first year, repeated surgeries have to be carried out and success of the surgeries depends upon the stimuli of the baby to the environment. Since the permissible limit of 24 weeks under the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as "MTP Act) as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021 was over, Petitioner approached this Court seeking a direction to the Respondents to allow her to undergo medical termination of pregnancy.
4. On 22.12.2021, this Court directed Respondent No.3/AIIMS to constitute a Medical Board at the earliest to examine the Petitioner, who had on the said date completed 28 weeks of pregnancy and after examination, to furnish its report regarding the necessity and feasibility of medical termination of the pregnancy. Relevant part of the order reads as follows:
"2. Learned counsel for the petitioner submits that as per the medical opinion based on the petitioner"s ultrasound report and other medical test, it has been found that the petitioner"s foetus is suffering from various serious deformities and therefore, has very grim chances of survival. Learned counsel for the therefore prays that the petitioner be permitted to undergo medical termination of her pregnancy.
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5. Keeping in view the fact that the petitioner has undergone over 28 weeks of pregnancy, the respondent no.3 is requested to constitute a Medical Board at the earliest and after examining the petitioner furnish its report the necessity and feasibility of the medical termination of the petitioner"s pregnancy. The reports be submitted on or before 27.12.2021."
5. Pursuant to the said order, a multidisciplinary Medical Board (hereinafter referred to as "Board) was constituted by AIIMS, Chaired by Additional Professor, Department of Obstetrics and Gynaecology. The Board rendered its Opinion on 24.12.2021, relevant portion of which is as under:
"OPINION The Medical board after reviewing the records is of the following opinion:
The petitioner Mrs. Pratibha Gaur is a 33-year-old lady. This is her first pregnancy and she is currently 28 weeks of gestation by date which corresponds with the ultrasound finding. Ultrasound and fetal ECHO are suggestive of Tetralogy of Fallot with absent pulmonary valve syndrome which has been confirmed by USG and ECHO at AIIMS, Ne
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