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.
"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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