28 May,2019 10:16 AM IST | Mumbai | mid-day online correspondent
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A woman who had petitioned the Bombay high court a week ago for permission to terminate her 28-week pregnancy after finding that the fetus had a major brain anomaly delivered the baby at Sion Hospital on Sunday. The baby was born a day before a JJ medical board affirmed that the woman could terminate the pregnancy due to mental agony the fetus's condition was causing her. On Monday, the baby's father told the vacation bench of Justices Bharati Dangre and Nitin Jamdar that she had given birth at 29 weeks.
The couple's advocate, Prosper D'Souza stated the baby's health appeared to be critical. "Who will look after the baby? The mother is house-bound and her partner does odd jobs as an electrician and plumber. They were in a decade-long courtship and have been living together for less than a year," the advocate added stating that the couple would not be able to handle the financial strain of the child's health. He said, if necessary, the petition would now be amended and a plea to make the state parens patriae (legal protector) be added. Prosper D'Souza cited an order passed by a bench headed by Justice Abhay Oka in April which had outlined that in certain cases medical boards can recommend abortions beyond 20 weeks.
According to the Times of India, the judgment had significantly mentioned that when pregnancies with major health risk to babies result in birth, parents and doctors owe a duty of care to the child. But in rare cases due to "several myriad factors", if the parents are unwilling to or are not in a position to provide care for the child, then the 'parens patriae' doctrine will oblige the state to take over parental responsibility. The bench acknowledged that new issues may arise now and the petition may not become infructuous and an amendment can be made. The court adjourned the matter to June 6, 2019.
The court had first directed on May 20, that a medical board be constituted by the J J Hospital dean under the Medical Termination of Pregnancy Act of 1971 to examine the fetus's health. Advocate, Prosper D'Souza had informed the court that the woman's medical examination had revealed the fetus had a "major brain disorder". The advocate told the court that the doctors had said the division of the brain's right and left hemispheres was not properly formed. Since the abortion law prohibits medical termination beyond 20 weeks, the woman moved court citing an apprehension that, if born, the baby would be seriously handicapped.
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After the plea, the then high court bench of Justices Sarang Kotwal and S K Shinde had perused the opinion of Sion Hospital doctors and thereafter directed the JJ Hospital dean to examine the woman and submit a report in a sealed cover by May 22, 2019. The report revealed that the fetus's condition fulfilled the criteria of 'substantial risk of serious physical handicap' with very high mortality and morbidity rate. After perusing the first report on May 24, the high court directed the JJ medical board to give a second report. This time to confirm 'whether to terminate the pregnancy immediately or to wait till the delivery takes place". The court heard neurologist Dr. Kamlesh Jagiasi, associate professor, JJ Hospital, on the medical board and requested an opinion on the "health of the mother" and then the medical board submitted a report recommending immediate medical termination of the pregnancy.
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