As Delhi HC permits termination of two 28+ week pregnancies on the basis of medical advice, the question of woman’s right to her bodily integrity remains unanswered

In the last ten days, the Delhi High Court has, in two separate cases, rendered progressive decisions prioritizing the mother's mental health while allowing the medical termination of 28 and 30 week pregnancies. However, according to advocate Sneha Mukherjee, who represented the petitioner in one of the cases, there is scope for significant reform in the MTP Act to place agency firmly with pregnant women for deciding on termination of pregnancies, writes NINAD PARIKH.

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EARLIER this week, the Delhi High Court allowed a woman to terminate her over 30-week pregnancy as the foetus had a rare chromosomal disorder, and said that had she given birth, the child would have such substantial abnormalities that normal life might have never been an option.

"If the woman is forced to continue with the pregnancy she will be in constant fear about the high odds of a stillbirth. Even if the infant is born alive, the mother would be bearing the heavy pain of knowing the child can die within a few months," the High Court said.

This comes soon after the Delhi high court, in a similar judgment rendered on December 31 last year, permitted a woman to terminate her pregnancy after 28 weeks of pregnancy, after finding out that the foetus had a rare congenital heart condition.

Also read: Abortion in India – still not a right but a privilege

Under the Medical Termination of Pregnancy Act (Amendment) 2021, termination of a pregnancy is permissible where the length of pregnancy does not exceed 20 weeks. Although on an opinion formed by a doctor, if the pregnancy would cause a risk to the life of the woman or grave injury to her physical or mental health, or if there is a risk that upon the birth of the child, it would suffer serious physical or mental abnormality, the limit in such cases is extended till 24 weeks. Before the amendment, under the Medical Termination of Pregnancy (MTP) Act, 1971, the normal termination limit was up to the 12th week of pregnancy, and upon risk to the life of the mother or the child, from the 13th to the 20th week.

However, in this case the woman had completed 28 weeks of pregnancy. Under the MTP (Amendment) Act of 2021, permission to medically terminate a pregnancy beyond 24 weeks requires the diagnosis of "substantial foetal abnormalities" by a Medical Board.

The 33-year old petitioner had gone through regular check-ups during her pregnancy. Around the time she completed the 24th week of her pregnancy, she found out that the foetus had a rare congenital heart condition. Upon consulting multiple medical experts, she learned that the rate of survival of the foetus was quite low. Even if the child were to survive beyond one year, the condition would require numerous surgeries to be performed on them through the course of their lives.

Also read: Will the Medical Termination of Pregnancy Amendment Bill reduce abortion cases before Indian High Courts?

Court's rationale

The single judge bench of Justice Jyoti Singh, which heard the matter, ruled that the petition was justified, and that continuing with the pregnancy when it is known that the foetus suffers from a rare congenital heart disease, considered a 'substantial foetal abnormality', would have a deleterious impact on her mental health.

The court decided, after the Medical Board constituted by the All India Institute of Medical Sciences (AIIMS), New Delhi, and chaired by an Additional Professor from AIIMS's Department of Obstetrics and Gynaecology, opined that the child, if born, would have to undergo repeated cardiac surgeries and would have an 80 per cent of survival rate.

The board said that in addition to the heart disease, the foetus would require respiratory support in the initial stage of life.

Also read: The Question of Mother's safety in Abortion: Is the Indian system progressive?

Based on the report, Justice Singh noted that "the child would require cardiac surgery not only in the initial stage of life, but may also need a repeat cardiac surgery in late adolescence or adulthood. This entire medical regime would expose the child to intra– and post-operative complications— adversely impacting the quality of the child's life."

The court also looked at the Bombay High Court's judgment in High Court on its own Motion vs. The State of Maharashtra (2016), in which a division bench of the high court allowed the petitioner to terminate her foetus 27 weeks into the pregnancy due to health issues she was suffering, as well as the fact that she already had a young baby with several health issues. The court's judgment stated that "a woman's decision to terminate a pregnancy is not a frivolous one… If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity [and harmful] to her mental health."

Problems with current MTP Act regime

The Leaflet asked Delhi High court advocate Sneha Mukherjee, who was the petitioner's counsel in the case, about the biggest obstacles faced by the pregnant women seeking medical termination of pregnancy. Mukherjee replied that these are the lack of access to correct information about the law among women, as well as the MTP Act itself that puts several conditions on access to medical termination of pregnancy, and necessitates third party authorisation (Medical board).

Also read: Medical Boards under MTP Bill will make Abortion Inaccessible

This case also illuminates the considerable significance given to the medical board's opinion under the amended MTP Act to diagnose any foetal anomaly by the judiciary.

According to Mukherjee, the approval from medical boards is essentially a third party authorisation, which is a violation of a person's right to agency and autonomy, as it takes away the power to decide from a pregnant person and shifts it to the board. This could sometimes work against the interests of pregnant women.

The Bombay High Court had last week ordered the Maharashtra government to immediately set up medical boards under the amended MTP Act, and observed that the failure of the state government to set up such boards "not only causes hardship to women seeking medical termination of pregnancy but also increases the number of petitions filed for such purposes.

There has been a significant increase in the cases of women seeking medical termination of pregnancy, even as the pandemic has reduced access to such services to a very large extent, adds Mukherjee.

Also read: Why are teenage rape survivors forced to knock on the Court's door for termination of pregnancy?

How can the governance of medical termination of pregnancies be reformed to give pregnant women easier access to such terminations as well as safer healthcare? As per Mukherjee: "MTP should be allowed at the request of the pregnant person in consultation with their gynaecologist, with only the consideration that the procedure of MTP itself should not pose any danger to the pregnant person. Any arbitrary restriction or unreasonable condition does not stop MTP; it forces women to seek MTP from quacks which puts them at great risk. The need is to safeguard pregnant people from this risk and provide them safe access."

(With PTI inputs)

(Ninad Parikh is a final year journalism student at Tata Institute of Social Sciences.)