Feticide Cannot Be Permitted As Fetus Doesn't Show Any Abnormality: Delhi HC Recalls Its Judgment That Permitted Termination Of 30 Weeks’ Pregnancy

The Delhi High Court allowed an application filed by AIIMS New Delhi for recall of its judgment by which a woman who lost her husband in October 2023, was permitted to terminate her 30 weeks of pregnancy.

The woman had filed a writ petition for a direction to the authorities to permit medical termination of her ongoing pregnancy under Section 3(2)(b)(i) read with 3(3) and Section 5 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) read with Rule 3B of the MTP Rules, 2003 in AIIMS Hospital, New Delhi immediately.

A Single Bench of Justice Subramonium Prasad said, “The Petitioner unfortunately has lost her husband in October, 2023 and was pregnant for 30 weeks when she approached this Court. At this juncture, it is relevant to refer to the detailed assessment and psychological assessment report of the Petitioner. The Psychological Assessment Report of the Petitioner indicates that the assessment was completed across one session lasted for two hours. During the assessment her attention could be aroused and sustained. Eye to eye contact was maintained rapport could be established with her and observations and tests findings show that the Petitioner is suffering from severe depression with anxiety features which associated with her stress life events and not suggestive of any psychotic features.”

The Bench noted that the courts, while exercising jurisdiction under Article 226 of the Constitution, have permitted termination of pregnancy even beyond 24 weeks in cases of abnormalities in the foetus.

Advocate Amit Mishra appeared on behalf of the petitioner while ASG Aishwarya Bhati appeared on behalf of the respondent.

In this case, the petitioner woman got married in February 2023 but unfortunately, her husband passed away in October month due to some medical complications. She came back to her parents’ house and then went for an ultrasound and found that she was pregnant for 20 weeks and roughly two months later in December month, she decided not to continue with her ongoing pregnancy as the same would cause grave injury to her physical and mental health due to material changes and circumstances in her marital life.

Since the doctors of AIIMS refused to terminate her pregnancy due to limitations under MTP Rules, she approached the High Court via writ petition. The Court requested the AIIMS to constitute a medical board urgently to examine her condition and adjourned the matter. After considering the medical report, it directed her to undergo Psychiatric evaluation. And on January 4, 2024, it permitted her to undergo the procedure for termination of her pregnancy even though she had crossed her gestation period of 24 weeks. On January 15, two applications were filed by the Centre for recall of the High Court’s said judgment.

The High Court after hearing the contentions of the counsel observed, “The report indicates that the Petitioner is a graduate and she has developed all these issues after the death of her husband. The aforesaid Psychological Assessment Report of the Petitioner indicates that the Petitioner is suggestive of normal individual as like others. The report also indicates that the Petitioner is suffering from depression which is associated with her stress life events and not suggestive of any psychotic features.”

The Court added that the Psychiatrist who has evaluated the petitioner, has not given any report suggesting that her ongoing pregnancy and delivery will cause a grave injury to her mental health which is necessary for giving permission for termination of pregnancy exceeding 20 weeks but not beyond 24 weeks under Section 3(2)(b) of the MTP Act.

“The Medical Board is also of the opinion that since the fetus does not show any abnormality, feticide in this case is neither justified nor ethical. The Medical Board consists of Gynaecologist, Radiology (Sonology) etc. It is pertinent to mention here that Dr. Barre Vijay Prasad who is a Psychologist and has evaluated the Petitioner, has also participated in the proceedings and he has also not opined that the ongoing pregnancy of the Petitioner and delivery will cause a grave injury to the Petitioner's mental health”, it noted.

Furthermore, the Court said that the contentions of the counsel for the petitioner that the AIIMS Hospital be directed to go ahead with the foeticide cannot accepted. It observed that the AIIMS was well within its right to approach the Court for clarification over the status of foetus (if it alive after MTP) and for appropriate directions from the Court.

“The Medical Reports indicates that a preterm induction of labor has a high chance of failure and may lead to caesarean section which may have serious implications on her future pregnancies. The report also indicates that the child which is born after a preterm induction of labor can have physical and mental deficiencies which will have drastic effect on the future of the child and that the NICU ICU care in such case is about 30-45 days with reasonable risk of physical and mental handicap of the new born”, it also noted.

Accordingly, the High Court allowed the applications for recall of its judgment and permitted the Medical Board to take a decision as to how to go ahead with the delivery at the appropriate time.

Cause Title- R v. The Union of India through Secretary Ministry of Health and Family Welfare & Ors. (Neutral Citation: 2024:DHC:482)

Appearance:

Petitioner: Advocate Amit Mishra

Respondents: CGSC Bhagvan Swarup Shukla, GP Sarban Kumar, Advocates B.L.N Shivani and Ameyavikrama Thanvi, ASC Mehak Nakra, Advocates Disha Chaudhry, Abhishek Khari, Harsh Pathak, and Mohit Choubey.

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