Bombay HC allows married woman to terminate 32-week pregnancy, says ‘the decision is hers’

Court says it would be a denial of the woman’s right to dignity, and her reproductive and decisional autonomy if she is not allowed to undergo medical termination of the foetus with serious abnormalities

Updated - January 26, 2023 10:13 am IST

Published - January 23, 2023 06:56 pm IST - Mumbai

Bombay High Court

Bombay High Court | Photo Credit: VIVEK BENDRE

The Bombay High Court recently allowed a married woman to undergo medical termination of her 32-week pregnancy citing serious foetal abnormalities and said, “The decision is hers, and hers alone to make, once the conditions in the statute are met. The right to choose is the mother’s.”

A Division Bench of justices G.S. Patel and S.G. Dige was hearing a plea filed by a woman in January through advocate Aditi Saxena that said the sonography of the foetus showed serious anomalies and abnormalities during a routine medical checkup on December 22.

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Following this on December 30, a medical board was constituted as required by the Medical Termination of Pregnancy Act. The medical opinion confirmed the diagnosis of anomalies and added the possibility of intellectual disability to the child but said both conditions were not life-threatening. It denied the request for a medical termination of pregnancy in view of the advanced gestation period.

The woman, however, said she comes from a humble background and will not be able to provide additional care and meet the expenses of an infant born with such conditions and urged the court to intervene.

The court then directed a qualified psychiatrist to assess whether a medical termination of the pregnancy at this stage would pose a physical or mental risk to the woman. The report stated that she has no major medical, obstetric, psychiatric complications at present but considering the advanced gestational age the medical termination of pregnancy is not recommended.

However, Advocate Saxena in the court pointed out that the Act does not say what is to happen if a foetal abnormality is detected late in the pregnancy and that the writ jurisdiction of the Court may be invoked.

The court on January 20 allowed the termination of the pregnancy and said, ““It is not the right of the medical board, and it is also not the right of the court to abrogate the woman’s rights once they are found to fall within the contemplation of the law.“

The 23-page judgment read, “In refusing a medical termination of pregnancy only on the ground of delay, this court 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. It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today that there is no possibility of having a normal healthy baby at the end of this delivery.”

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