Supreme Court Sets Aside Order of Bombay High Court, Permits Woman to Terminate Foetus With Down Syndrome

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A full bench of Justice R. Bhanumathi, Indu Malhotra, and Aniruddha Bose allowed a special leave petition, preferred against the Bombay High Court.

Abortion laws in India

Termination of Pregnancy on the grounds of “physical or mental abnormalities” of an unborn child is permitted under section 3(ii) of the Medical Termination of Pregnancy Act. A registered medical practitioner can terminate the pregnancy in the given circumstances. But this opinion should be, formed in good faith, considering that-

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

(ii) there is a risk that the child would suffer from abnormalities as handicapped.

The Lok Sabha passed an amendment bill on March 17, 2020.  It was after realizing that women’s reproductive rights have a long way to go. This bill proposed to extend the gestation period of termination of pregnancy. That is from 20 weeks to 24 weeks. This was on grounds of foetal abnormalities or pregnancies due to sexual violence.

Previous SC rulings on Abortion

Abortion Jurisprudence of the SC is based on recommendations of the Medical Board rather than the women’s choice. The SC observed that denying the right to abortion to a woman conflicts with Article 21 of the Constitution.  It was in Suchita Srivastava’s judgment delivered in 2009. The Medical Termination of Pregnancy Act, 1971 allows a woman to terminate her pregnancy. That is if the length of the pregnancy has not exceeded 12 weeks but not 20 weeks.

In May 2020, the Bombay High Court had allowed termination of a 24 weeks pregnancy of a 16-year-old rape victim. The survivor’s father had contended that the victim is likely to suffer mental agony in view of unwanted pregnancy. Soon after that on 27th May 2020 a Division Bench of Justices Nitin Jamdar and NR Borkar allowed a petition filed by the minor’s mother seeking permission to terminate the pregnancy. She was a 13-year-old girl who was raped by her father. These are historic examples of the progressive decisions of the Court.

Brief facts of the Case

In the present case, the petitioner Komal Hiwale was pregnant by about 24-25 weeks. She sought termination of pregnancy as Down Syndrome plagues one of her foetuses. By order dated 22.05.2020, the HC had declined to grant permission for foetal reduction. The HC was of the view that it may not be safe for the mother. Also, foetal reduction of one foetus may affect the other normal foetus. Hence she has approached the Hon’ble Supreme Court in the same matter.

By an order dated 10.06.2020, the Supreme Court directed to reconstitute the Medical Board. They directed the committee to submit a report on the following two issues:

1) To give a further opinion whether the abortion of one foetus will affect the life of the mother;

2) Whether the abortion of one foetus will have an effect on the surviving second foetus.

Arguments before the Court

The Court included Dr Purnima Satoskar, a specialist in Foetal Medicine on the board. In her report, she submitted the petitioner’s dichorionic diamniotic twin pregnancy. The petitioner was around 25 weeks pregnant. Trisomy 21 affects one of the foetuses. The other foetus (foetus A) however, is chromosomally and structurally normal.

She submitted that the foetus suffered from an incurable chromosomal abnormality. In addition, the same is classified in the list of “substantial and serious abnormalities” by the Union Ministry of Health and Family Welfare. It is in their “Guidance Note for Medical Boards for Terminal of Pregnancy beyond 20 weeks Gestation”.

The Board further opined that the termination of abnormal foetus carries negligible risks to the mother. Further, multiple cases have proven to be safe, with no maternal deaths.

Observation of the Court

The Court observed that it finds no medical reason not to provide treatment of foetal reduction. They can convert the twin pregnancy to singleton pregnancy, and thereby abort the foetus affected with Down Syndrome.

Order

The Court set aside the impugned order of the High Court. It permitted the petitioner-Komal Hiwale to undergo foetal reduction as per the procedure stated by Dr Purnima Satoskar. Further, the petitioner and her husband should consent to this. The Court then disposed of the petition.


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