Unclear abortion law on mother’s mental health has High Court in a fix

Image for representation purpose only.

Image for representation purpose only.  

Woman’s plea seeks to terminate 28-week-old pregnancy as foetus has abnormalities, and childbirth will affect her mentally

Mumbai: A woman’s plea in the Bombay High Court seeking to terminate her 28-week-old pregnancy because the foetus has grave medical abnormalities has the court in a quandary: in the Medical Termination of Pregnancy Act, section 5 allows medical termination of pregnancy after the permissible 20-week period if the pregnancy and childbirth pose threats to the woman’s physical health or life. However. the law doesn’t deal with the woman’s mental health, and has no provision to deal with foetal abnormalities either.

The woman and her husband have argued that not only will the child be born with abnormalities and face consequent difficulties, but forcing the woman to continue with the pregnancy will cause trauma and affect her mental health.

According to a medical report by a panel of doctors at JJ Hospital, submitted to a Division Bench comprising Justices R.M. Borde and Rajesh Ketkar on January 2, the 37-year-old woman’s foetus suffers from neurological, cardiac and bowel abnormalities. The panel comprised the State-run hospital’s Head of Departments of Obstetrics and Gynaecology, Psychiatry and Radiology, an associate professor from the Department of Paediatric Surgery and an assistant professor from the Department of Neurosurgery.

The report says, “After careful study of multiple sonography reports, it is confirmed that the foetus suffers from neurological, cardiac and bowel abnormalities with a very high chance of morbidity and mortality. The condition of the foetus fulfils the criteria of ‘substantial risk of serious physical handicap’ and the pregnant woman has voluntarily expressed her desire to terminate the pregnancy.”

Is her life in danger: HC

After going through the report, the Bench wanted to know how the condition of the foetus poses a threat to the woman’s life. Though the Union Ministry of Health and Family Welfare has proposed amendments to the Act in 2014, including introducing the concept of risks to the woman’s mental health and the idea of substantial foetal abnormalities, the draft Bill with the amendments is yet to be ratified by Parliament. The Bench said, “You prove to us that the threats to the mental well-being of the petitioner is covered under section 5 of the MTP Act. Only then can we allow the plea. Sadly, while the proposed Bill provides for the above concept, it is yet to become a law.”

Incidentally, during his previous tenure as a judge on the Aurangabad Bench of the Bombay HC, Justice Borde had permitted a victim of rape to terminate her pregnancy even though it was beyond the 20-week ceiling and posed no threat to her physical health, after she threatened to commit suicide. “She said if we don’t allow then she will have no choice but to end her life. This was a considerable threat to her physical being, to her life, thus, I permitted it,’ Justice Borde said.

Advocate Meenaz Kakalia, appearing for the petitioner, said it’s been 10 days since the petition was filed. “The court wants us to show how this case falls under section 5 of the MTP Act, which says an abortion is allowed after 20 weeks of pregnancy only if there is a risk to the woman’s life. The court has asked for orders by either the HC or the Supreme Court that explicitly say the pregnancy was allowed to be terminated because there was a threat to the mother’s life. They want this on Tuesday, so there isn’t much of a window for us to go to the SC, as the pregnancy is in the 28th week.”

Mental health risk: experts

Advocate Sneha Mukherjee, who has appeared in medico-legal cases earlier, said, “I’ve seen the medical panel’s report, which says the foetus has severe physical and mental handicaps. This means life expectancy is almost nil, and even if it survives for a certain period, the child’s standard of life would be very low. One has to consider the woman’s physical and mental health; she shouldn’t have to die to prove a point. The pregnancy and childbirth will affect her in the worst way possible. It may not be just physical, but largely mental in nature.”

Quoting from an SC order, Ms. Mukherjee said the apex court has allowed medical termination of pregnancy even in the 31st week. “This is a rare case where the HC doesn’t want to accept whatever the SC has ruled in similar cases. In one instance, the SC had not allowed an abortion on similar grounds. The child was born with severe abnormalities, and died after two months.”

Gynaecologist Dr. Nikhil Datar, who had examined the petitioner two weeks ago, said, “I’ve seen the report, and what it says is reason enough to terminate the pregnancy. The existing Act was framed in 1971. How can the threat be quantified and qualified as an immediate risk to the woman’s life? This is why the law needs to be amended at the earliest. If the draft Bill with amendments had been ratified, this situation wouldn’t have arisen. Till the law is amended, we have around 30 SC and HC judgements, in which termination of pregnancy has been allowed by considering Article 21 (Right to Life) of the Constitution of India.”

The Bench is likely to pass an order on the plea on January 10. — With PTI inputs

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Printable version | May 27, 2020 7:11:36 PM |

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