Choice Of The Mother

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 6th December, 2022
W.P.(C) 16607/2022
 
 
MRS. X                                      ..... Petitioner
                                                    
                           versus
 
GNCTD & ANR.                                ..... Respondents
                                                    
CORAM:
JUSTICE PRATHIBA M. SINGH
 
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.

2. The right of a pregnant woman to terminate her pregnancy or abort the foetus has been the subject matter of debate across the world. This right gives a woman the ultimate choice as to whether to give birth to the child which she has conceived. India is amongst the countries that recognises this choice of the woman, in its law, and has even expanded this right in recent times with amendments permitting termination at an advanced stage, under various circumstances. While recognising the choice of the woman - the ultimate giver of life in this world, beyond the Omnipresent, such cases highlight the severe dilemma that women undergo while taking a decision to terminate her pregnancy. Courts are no exception - in that Judges have to grapple with issues that are not merely factual and legal but also involve ethical and moral factors. With the emergence of modern technologies to detect abnormalities in an unborn child, the issues surrounding termination and abortion are bound to become more and more complex. Such technologies coupled with the unpredictability in ascertaining the degree of abnormalities, even by medical practitioners, pose challenges to the manner in which society may grow in the future.

3. The present petition has been filed by Mrs. X who, after her marriage in November, 2021, is stated to have conceived a child in March, 2022. The Petitioner is in the thirty-third week of gestation, and the due date of delivery is stated to be around mid-January, 2023.

4. The Petitioner underwent her first ultrasound at a diagnostic centre situated in Noida, where she resides along with her husband. The first ultrasound was conducted at four weeks and six days of her gestational period. The first ultrasound report dated 14th May, 2022, reads as under:

5. The second ultrasound was conducted, at the same Diagnostic Centre, at seven weeks and four days of her gestational period. The second ultrasound report dated 1st June, 2022, reads as under:

"USG EARLY PREGNANCY Lmp 14.03.22 ga 11 wks 2 days aua 7 wks 4 days Scan shows single intrauterine regular Gestational sac MSD measuring 42.4 mm corresponding to 9wks1Days with adequate decidual reaction noted all around the sac.

Single live fetus with CRL 13.6 mm ~_7weeks7days of gestation is noted.

Fetal heart rate= is present, 156 bpm, regular, rhythmic, No adenexal mass.

Cervix appears normal measuring 3.8 cm. Internal Os is closed.

` Note:- not all congenital anomalies can be seen on ultrasound. This is just a professional opinion not for medico - legal purpose. Declaration: by conducting usg, i have neither detected nor disclosed the (sonologist) sex of fetus of the pregnant women to any body."

6. The third ultrasound was conducted at sixteen weeks and five days of her gestational period. The third ultrasound report dated 7 th August, 2022, reads as under:

"USG LOWER ABDOMEN (PREGNANCY) Lmp ? 13.03.22 ga 21 wks 0 days aua 16 wks 5 days Scans show single live fetus in cephalic presentation. Fetal heart rate = 154 beats per minute. Fetal heart rate and aortic pulsations and limb, body movements seen under real time scanning and appear normal.

Placenta is anterior, grade I maturity, 2.9cm away from os, low lying Liquor appears adequate for POG.

Fetal skull, spine, gastric bubble, kidneys, urinary bladder appear normal.

No obvious congenital abnormality seen in present fetal position during current examination.

                                       Bi         Parietal =35.7 mm=16 weeks 6 days
                                       Diameter (B.P.D)    =/- 1 week
 
                                       Femur      Length =22.5 mm = 16 weeks 1 days
                                            (F.L)        +/- 1 week
 
                                       Fetal         Abd. 108 mm = 16 weeks 5 days
                                       Circumference      +/- 1 week
                                       (FAC)
                                       Fetal         Head 133. mm = 16 weeks 3 days
                                       circumference      +/- 1 week
                                       (FHC)
 
                                      EGA (BY USG)                      = 16 weeks5
                                      days.
                                      EDD (BY USG)                      = 17 /01 / 2023.
                                      EFW                               = 168 =+/- 15%
                                      GMS
Os is closed. Cervix is normal in length.

IMPRESSION: SINGLE LIVE FETUS OF ABOUT 16 WEEKS 5 DAYS +/- 1wk LOW LYING PLACENTA GR I note: - not all congenital anomalies can be seen on ultrasound. This is just a professional opinion not for medico - legal purpose. declaration: by conducting usg, I have neither detected nor disclosed the sex of (sonologist) fetus of the pregnant women to any body."

7. As is evident from the above three ultrasounds reports, the foetus did not exhibit any abnormalities. However, all the three reports contain a clear disclaimer to the effect that "Not all congenital anomalies can be seen on ultrasound".

8. After a gap, the Petitioner underwent the fourth ultrasound at thirty weeks and one day of her gestational period. To her surprise, the same revealed "significantly dilated left lateral ventricle of the brain". The relevant portion of the said ultrasound report dated 12th November, 2022, reads as under:

"LMP: 14, 3, 22 G. Age by LMP 34 wks 5 days EDD by LMP 19, 12,2, Single live fetus in Cephalic presentation at the time scan.

Foetal cardiac activity (FHR= 133 bpm). Foetal movements present.

xxx xxx xxx IMPRESSION :- Single live foetus of 30 wks 1 days Note: There is an evidence of significantly dilated left lateral ventricle of brain measuring 23.7 mm at atria Right ventricle is not delated. Complete assessment not possible due to advanced Gest. age however grossly spine appear normal.

Left monventriculomegaly."

9. As can be seen from the above report, the foetus showed evidence of cerebral abnormality. In order to confirm the said finding, the Petitioner was advised to undergo an MRI of the foetus. Accordingly, the Petitioner underwent another ultrasound with a different diagnostic centre, two days later, i.e., on 14th November, 2022, which confirmed the said finding. The said ultrasound report dated 14th November, 2022, reads as under:

"*Left cerebral ventricle is dilated up to 22.7 mm. There appears to be partial corpus callosum agenesis. No dilation of 3rd ventricle.

IMPRESSION: Single live intrauterine gestation of average age 30 weeks 2 days with Cephalic presentation with mild Oligohydramnios and left cerebral ventricular dilation with suspected partial corpus callosum agenesis."

10. On 28th November, 2022, the Petitioner, went to a third hospital which also confirmed the said finding. Accordingly, the Petitioner was informed of the applicable laws and procedure, and the hospital's advice was as under:

"ADV:

• Patient and Attendant explained about the new MTP Act • Prognosis of foetus explained"

11. Finally, the Petitioner approached the Guru Teg Bahadur Hospital (hereinafter, "GTB Hospital"), which is run by the Respondents - GNCTD. Thus, the Petitioner obtained confirmations from three different diagnostic centres/hospitals regarding the findings, and finally sought to exercise her choice to terminate the pregnancy.

12. At the GTB Hospital, the Petitioner was again informed of the procedure under the Medical Termination of Pregnancy Act, 1971 (as amended by the MTP Amendment Act, 2021) (hereinafter, "MTP Act, 1971"). Vide OPD Card dated 29th November, 2022 issued by the GTB Hospital, the concerned doctor advised as follows:

"Report to Court for grant of permission of termination of pregnancy"

13. Pursuant to the above advice given at GTB Hospital, the Petitioner approached this Court with the present petition. The prayers sought in the present petition are set out below:

"i) Direct the Respondent No. 2 to form a board comprising not less than two registered medical practitioners and submit an opinion qua the medical termination of pregnancy of the Petitioner; and

ii) Further direct the Respondents No.1 & 2 to medically terminate the pregnancy of the Petitioner. And/or

iii) Pass any other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

14. This matter was listed before this Court for the first time on 2nd December, 2022. On the said date, this Court considered the submissions made by the parties, and the following order was passed:

"2. The Petitioner, in the present petition, is a 26 year old married woman, currently at 33 weeks gestational age. The present petition has been filed by the Petitioner seeking directions to the Respondent No.2

- Guru Teg Bahadur Hospital (hereinafter, "GTB Hospital") to the following effect:

"i) Direct the Respondent No. 2 to form a board comprising not less than two registered medical practitioners and submit an opinion qua the medical termination of pregnancy of the Petitioner; and

ii) Further direct the Respondents No.1 & 2 to medically terminate the pregnancy of the Petitioner. And/or

iii) Pass any other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

3. The background of the case is that the Petitioner is stated to have undergone regular ultrasounds since the inception of the pregnancy and was not informed of any foetal abnormalities. However, in the ultrasound which was undertaken on 12 th November, 2022, an abnormality was observed in the foetus, at the left lateral ventricle of the brain. Pursuant to the ultrasound report dated 12th November, 2022, it is submitted that the petitioner was orally advised that the said abnormality was life long and would subject the child to seizures etc., owing to immature cerebral development. This report was again confirmed by two other private ultrasound facilities on 14th November, 2022, and 28th November, 2022.

4. Hence, the foetus having been now found to have cerebral abnormality, the Petitioner approached the Respondent No.2 - GTB Hospital for the purpose of termination of the pregnancy, whereby she was referred to approach the Court to seek permission vis-a-vis medical termination of pregnancy, owing to the gestational age of 33 weeks.

5. Ld. Counsel for the Petitioner relies upon the decision of the Bombay High Court in Roshni Asik Khan vs. State of Maharashtra, [Writ Petition (L) No. 18582 of 2021,decided on 26th August, 2021] and the decision of the Calcutta High Court in Nivedita Basu vs. State of West Bengal &Ors., [WPA 2513/2022 decided on 17th February, 2022], in support of the plea that even after the expiry of 24 weeks of gestation period, the medical termination of pregnancy would be permitted if there is any substantial foetal abnormality, in terms of the mechanism prescribed under Section 3(2B) and 3(2D) of the MTP Act,1971 (as amended by the MTP Amendment Act, 2021).

6. Ms. Sethi, ld. Standing Counsel for GNCTD submits that the GTB Hospital does not have a medical board which is already constituted for the purposes of the MTP Act, 1971. However, the Petitioner can be examined by the Medical Board of the Lok Nayak Jai Prakash Narayan Hospital (hereinafter, "LNJP Hospital"), which is already in place.

7. Considering the gestational period of the Petitioner herein, the Medical Board of LNJP Hospital is directed to conduct a medical examination of the Petitioner today itself, and submit a report to this Court. The said report be sent through e-mail to the Court Master on the evening of Sunday i.e., 4th December, 2022, and be placed before this Court on Monday i.e., 5th December, 2022.

8. Let a copy of the said report of the medical board be also supplied to the ld. Counsel for the Petitioner, through e-mail.

9. List this matter as Item No.1 in the supplementary list on 5th December, 2022.

10. Copy of the present order be given dasti under signature of the Court Master."

15. As per the above order dated 2nd December, 2022, the Medical Board of the Lok Nayak Jai Prakash Narayan Hospital (hereinafter, "LNJP Hospital"), constituted under the MTP Act, 1971, was to examine the Petitioner on Friday i.e., on 2nd December, 2022 itself, and give its recommendations/opinion. However, on 3rd December, 2022, the following email was received from the Medical Board of LNJP Hospital:

"This is with reference to the Sub: W.P. (C) 16607/2022 & CM Appl. 52253/2022 in the matter of Mrs. X Vs GNCTD & ANR regarding Medical Examination of Mrs. X and opinion regarding MTP. In this regard, it is to inform that the Medical Board of MTP has examined as this is the case of advanced pregnancy, more than 33 weeks a team of multiple doctors would conduct this (Paediatricians, gynaecologists, radiologists and Neurologists) for the safety of the mother. The doctors of the board had advised foetal MRI which is scheduled on Monday. The detailed report will be submitted on the basis of the findings of foetal MRI report as informed by the Chairperson of the MTP Board. This is for your kind information"

16. The matter was mentioned on 5th December, 2022 in the morning at 10:30 a.m. and various grievances were raised by the Petitioner. It was submitted that the Medical Board made the Petitioner wait till around 10:30 p.m. There was an apprehension expressed on behalf of the Petitioner that the foetal MRI, which was scheduled for 5th December, 2022, could also be delayed. Accordingly, the Court directed LNJP to conduct the foetal MRI on an urgent basis, and submit the report by 2:30 p.m.

17. The report of the Medical Board of LNJP was received by this Court around 4:30 p.m. The Medical Board which examined the Petitioner, pursuant to order dated 2nd December, 2022, consisted of the following members:

i. Dr. Y.M. Mala -

Director Professor & Chairperson (Obst. & Gynae) ii. Dr. Rachna Sharma Sr. Specialist Member Secretary (Obst. & Gynae) iii. Dr. Chandra Shekhar Specialist Member (Deptt. Of Neurosurgery) iv. Dr. Meenakshi Asst. Professor Member (Paediatrics Deptt.) v. Dr.Alpana Manchanda Director Professor Member (Deptt. Of Radio Diagnosis) Signature Not Verified By:DEVANSHU JOSHI Signing Date:06.12.2022 15:17:50 2022/DHC/005344

18. The final opinion of the Medical Board is extracted below:

S.no. Reports Opinion of the findings

1. 14/11/2022 Single live intrauterine ultrasound gestation of average age 30 weeks 2 days with cephalic presentation with mild oligohydramnios and left cerebral ventricular dilation with suspected partial corpus callosum agenesis.

5. Additional Investigation (if done):

                                     S.No. Investigation Key findings
                                           done
                                     1.        05/12/2022      Unilateral
                                               Foetal MRI      ventriculomegaly with
                                                               normal morphology of
                                                               brain
 
6. Opinion by Medical Board for termination of pregnancy

a). Allowed

b). Denied- TICKED Justification for the decision: Fetal MRI dated 05/12/2022 reveals dilation of cerebral left lateral ventricle with resultant parenchymal thinning of left temporal and occipital lobe. Rest of the cranial structures appear normal. No other associated gross congenital malformations were seen.

This condition is compatible with life and can be managed surgically following delivery. However, degree of handicap in the baby post delivery cannot be predicted. She is an advanced pregnancy and due date for delivery is around mid January 2023.

19. Upon receiving the above report, the Court interacted virtually, in the course of the hearing, with the following persons:

i. Dr. Chandra Shekhar/Specialist (Department of Neurosurgery); ii. Dr. Rachna Sharma/Sr. Specialist, Member Secretary, (Obst. & Gynae.);

                                 iii.     Mrs. X/Petitioner; and
                                 iv.      Mr. Y/Husband of the Petitioner.
20. Dr. Chandra Shekhar, the Neurologist, has stated that although the written opinion of the Medical Board records that the condition of the foetus is "compatible with life", however, the quality of life cannot be predicted. He stated that though the brain appears normal, the child would be required to undergo surgery immediately after birth. The same could be performed around the tenth week after birth. He confirmed to the Court that the ventricular dilation could be due to other medical reasons, but the brain parenchyma is normal. Upon being queried as to the degree of handicap in the child after delivery, he submitted that the same cannot be predicted as it is a congenital anomaly.

21. Dr. Rachna Sharma, the Gynaecologist, has stated that the pregnancy is almost at full-term and the risks for the mother, associated with medical termination at this stage, would be the same as those associated with the delivery of a child in normal course. She states that if medical termination is directed, the same could be through induced labour.

22. The Petitioner, in her conversation with the Court, stated that almost all doctors have confirmed the foetal abnormality, and this fact has caused considerable mental trauma to her. In Hindi, she stated " ?? ??? ????? ??? ????? ???? ?? ". The husband of the Petitioner stated that he works in the Accounts Department of a private company.

23. It is in the background of the foregoing facts that this Court has to consider the prayer for the medical termination of pregnancy made by the Petitioner.

ANALYSIS

24. In India, termination of pregnancy is governed and regulated by the Medical Termination of the Pregnancy Act, 1971. The MTP Act, 1971 provides the legal framework for termination of certain pregnancies by registered medical practitioners. The MTP Act, 1971 was recently amended by the Parliament, vide the Medical Termination of Pregnancy (Amendment) Act, 2021, (hereinafter "2021 Amendment") with effect from 24th September, 2021.

25. The earlier regime, prior to the 2021 Amendment, permitted medical termination of pregnancy which did not exceed twelve weeks, with the opinion of the one registered medical practitioner. Further, for medical termination of pregnancy between twelve to twenty weeks, the opinion of at least two registered medical practitioners, formed in good faith, was required. The Amendment in 2021 has, however, expanded the permissible gestational period to twenty weeks in the first category, and twenty to twenty-four weeks in the second category. In addition, various sub-sections under Section 3 of the MTP Act, 1971, which provide for instances when pregnancies may be terminated, being sub-sections 3(2A), 3(2B), 3(2C), and 3(2D) were also added, vide the 2021 Amendment. Section 3 of the MTP Act, 1971, as it stands, after the 2021 Amendment, reads as under:

"3. When pregnancies may be terminated by registered medical practitioners-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that--

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanation 1.--For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.--For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act. (2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.

(2D) The Medical Board shall consist of the following, namely:--

(a) a Gynaecologist;

(b) a Paediatrician;

(c) a Radiologist or Sonologist; and

(d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."

26. A perusal of the above provision shows that, under Section 3(2), the pregnancy can be terminated under various conditions. For the present case, Section 3(2B) of the MTP Act, 1971 which relaxes the conditions of length of pregnancy, would be applicable, as the gestational period is beyond thirty-three weeks. Under Section 3(2B), termination of pregnancy can be permitted only if the said termination is necessitated by the diagnosis of "substantial foetal abnormalities".

27. The MTP Act, 1971 does not define as to what constitutes "substantial foetal abnormalities" and thus the Court is required to take the assistance of external material for interpreting the said expression. The definitions of the following expressions in various statutes across jurisdictions are set out below:

                           S.      Country/State         Terminology     Definition
                           No.     Statute
                           1.      Abortion Act, 1967    physical or     1(1)(d) That there is a
                                   (United Kingdom)      mental          substantial risk that if the
abnormalities child were born it would as to be suffer from such physical or seriously mental abnormalities as to handicapped be seriously handicapped.

                           2.      Northern Ireland,     Grounds for     7.--(1) A registered medical
                                  he Abortion          termination:    professional may terminate a
                                  (Northern Ireland)    cases with no   pregnancy       where      two
                                   (No. 2) Regulations   gestational     registered             medical
                                   2020                  limit           professionals are of the
                                                         Severe fetal    opinion, formed in good
                                                         impairment or   faith, that there is a
                                                         fatal fetal     substantial risk that the
                                                      abnormality     condition of the fetus is such
                                                                         that--
                                                                       (a) the death of the fetus is
                                                                         likely before, during or
                                                                         shortly after birth; or
                                                                       (b) if the child were born, t                                                                        would suffer from such
                                                                         physical      or    mental
                                                                         impairment as to be
                                                                         seriously disabled.
 
                           3.      USA/Florida, Title  Fatal fetal       means a terminal condition
                                   XXIX Public Health, abnormality       that, in reasonable medical
                                   Chapter 390                           judgment, regardless of the
                                   Termination of                        provision of life-saving
                              Pregnancies                          medical     treatment,     is
                                                                     incompatible with life outside
                                                                         the womb and will result in
                                                                        death    upon     birth     or
                                                                         imminently thereafter.
 
28. A perusal of the above definitions would show that some of the definitions are extremely broad and wide, whereas, others are narrow and constricted. The question as to what would constitute "substantial foetal abnormalities" is, thus, dependent not only upon the medical conditions of the foetus, but also, on the broad public policy of the particular State or Country.

29. In India, judicial precedents have supported the rights of women to abort/medically terminate the pregnancy, depending upon the gestational period, the medical condition of the foetus, the physical and mental health of the woman, and other such factors. As far back as in the year 2009, the Supreme Court in Suchitra Srivastava v. Chandigarh Administration (2009) 9 SCC 1 recognised a woman's right to make reproductive choices as a dimension of 'personal liberty', as understood under Article 21 of the Constitution of Ind