New Delhi: The Bombay High Court bench of Justices Nitin Jamdar and Milind Jadhav has disallowed medical termination of pregnancy to a woman, who wanted the procedure in her 22nd week of pregnancy, because ultra sonograph pictures have shown that the foetus has a left cleft lip and cleft palate deformity. In doing this the bench disregarded Section 3 of the Medical Termination of Pregnancy Act, 1971 and stick to the report of the Medical Board formed particularly for the case. The medical board has clearly opined that the abnormalities of cleft lip and cleft palate are surgically correctable and termination of pregnancy is not warranted.
When the petitioner visited her doctor she got to know that the foetus has a deformity. She consulted another doctor, who confirmed this. The petitioner said in her plea that there is a likelihood of mental trauma and deformity of the foetus and therefore termination of pregnancy was necessary.
The bench formed the medical board which reported that those abnormalities were surgically correctable. The petitioner did not agree with the view of the board, but the bench laid down some guiding principles.
The guiding principles by Bombay High Court are:
“That it is permissible for the Writ Courts to issue a direction for termination of pregnancy after the expiry of stipulated period notwithstanding the mandate of the Act of 1971. While exercising this jurisdiction, the Court will have to take into account various factors such as physical and mental abnormalities of the child, right of the mother to make reproductive choices and the State interest. After the expiry of the stipulated period, there is a compelling State interest in protecting the rights of prospective or potentiality of the life. The compelling State interest can be overridden by if there is a threat to the life of the mother or if the child was to suffer mental or physical abnormalities to be seriously handicapped and the factors indicated in the Act. This being a delicate balance to achieve, each case will have to be examined on the existent set of facts.”
The counsel for the petitioner stressed on the plea, which said that mental trauma would result from being forced to raise a child with such deformity. The court disregarded such contention and upheld the report of the medical board, saying: “This is not a case where the termination of pregnancy is warranted. The foetus suffers from cleft lip and cleft palate, which is surgically correctable. The Medical Board has opined that there is no danger to the Petitioner in the normal delivery process. The likelihood of the mental trauma in future sought to be projected by the Petitioner, in the peculiar circumstances of this case, cannot be accepted as a ground for termination of pregnancy.”
The court declined to exercise its equity jurisdiction in this case while rejecting the petition.
Read the order here;
-India Legal Bureau
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