The Hindu : Front Page : High Court rejects Niketa’s plea to terminate pregnancy

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Tuesday, Aug 05, 2008
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High Court rejects Niketa’s plea to terminate pregnancy

Special Correspondent

No categorical medical opinion that child will be seriously handicapped

Photo: Vivek Bendre

DISAPPOINTED: Niketa and Haresh Mehta leaving the Bombay High Court after their petition seeking permission to terminate Niketa’s pregnancy was dismissed on Monday. —

Mumbai: The Bombay High Court on Monday rejected the petition filed by Niketa and her husband Haresh Mehta, along with their doctor Nikhil Datar, seeking permission to terminate her pregnancy, now in the 26th week.

The foetus was diagnosed with a complete heart blockage when she was in the 24th week of pregnancy. The couple wanted to abort the child for fear it would suffer for life.

A Bench consisting of Justices Khandeparkar and Ahmed Sayyad said there was “no categorical opinion” from medical experts that “if the child were born ..., it would be seriously handicapped.” Moreover, there was no provision in the Medical Termination of Pregnancy Act, 1971, to end pregnancy after the 20th week. Only in exceptional cases of danger to the health of the pregnant woman could abortion be allowed, said Justice Khandeparkar. In this case, “no exceptional case has been made out.”

The judge said the issue here, however, was one of future health risks to the unborn child, and not to the mother.

A second medical report submitted by a committee of experts, on the court directive, said there were “least chances” of the child being seriously handicapped.

In its first report, the committee spoke of “fair chances,” an opinion which was equivocal and therefore led to the directive for a second report.

The reports submitted by Niketa’s doctors mentioned serious health risks. However, they were negative to the possibility of cardiac surgery on the birth of the child and to the question whether a pacemaker could be a one-time solution.

The court resorted to Sections 3 and 5 of the Act. Section 3 mandates that opinion of registered medical practitioners be taken to determine any “serious handicap.”

Section 5 allows termination of pregnancy after the 20th week only when there is a health risk to the woman.

“A mere desire to terminate [a pregnancy] will not entitle the woman or doctors to terminate the pregnancy,” said Justice Khandeparkar.

As for the eventuality of the child’s condition, the court said there was no provision in Section 5 to that effect, thus leaving a lacuna. Addressing it was the prerogative of the Legislature and the court had no power to do that.

“The courts are not empowered to legislate upon a statute,” said Justice Khandeparkar.

Finally, the medical reports could not establish that Niketa’s case was exceptional. Therefore, the court had to rule against abortion.

“Nothing is placed on record that the period [for termination of pregnancy] is arbitrarily prescribed,” said Justice Khandeparkar.

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