Woman's right to choose whether to continue pregnancy or not, says Bombay HC

Bombay High Court. File Pic

A woman has the right to choose whether to continue her pregnancy or not and the decision is hers and hers alone to make, the Bombay High Court said while allowing a married woman to terminate her 32-week pregnancy after the foetus was detected with severe abnormalities.

A division bench of Justices Gautam Patel and S G Dige, in its judgment of January 20, a copy of which was made available on Monday, refused to accept the the medical board's view that the even though the foetus has serious abnormalities it should not be terminated as the pregnancy is almost at its fag end.

The woman had approached HC seeking to terminate her pregnancy after a sonography revealed the foetus had severe abnormalities and that the baby would be born with physical and mental disabilities.

"Given a severe foetal abnormality, the length of the pregnancy does not matter. The petitioner has taken an informed decision. It is not an easy one. But that decision is hers, and hers alone to make. The right to choose is of the petitioner's. It is not the right of the Medical Board," the court said in its order.

Refusing termination of pregnancy only on grounds of delay would not only be condemning the foetus to a less than optimal life but would also be condemning the mother to a future that will almost certainly rob her of every positive attribute of parenthood, the HC said.

"It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today there is no possibility of having a normal healthy baby at the end of this delivery," the court said.

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"Accepting the Medical Board's view is not just to condemn the foetus to a substandard life but is to force on the petitioner and her husband an unhappy and traumatic parenthood. The effect on them and their family cannot even be imagined," it added.

The petitioner's foetus is detected with both microcephaly and lissencephaly, and this is what the future portends, the bench said.

Asserting that the rights of the woman should never be compromised in the "blind application of a statute", the court said, "Justice may have to be blindfolded; it can never be allowed to be blindsided. We are agnostic about the relative positions of parties. We can never be agnostic about where justice needs to be delivered."

It said cases such as this often raise profound moral questions and dilemmas, but it is immutable that the "arc of the moral universe always bends towards justice".

The bench said the existence of the foetal anomaly, as well as its severity, was certain as also the fact that it was detected late.

"Because it is difficult to predict at birth what problems will occur, microcephalic babies need constant and regular follow up and check-ups with health care providers. There is no known cure or standard treatment for it. In more extreme cases, microcephalic babies need intervention almost constantly," the court said.

Most disturbingly, the prognosis for children with lissencephaly depends on the degree of brain malformation, it added.

The bench noted the medical board did not take into account the social and economic position of the couple.

"It ignores their milieu entirely. It does not even attempt to envision the kind of life, one with no quality at all to speak of, that the petitioner must endure for an indefinite future if the Board's recommendation is to be followed," the HC said.

"The Board really does only one thing: because late, therefore no. And that is plainly wrong, as we have seen," the court said while allowing the pregnancy to be terminated.

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