- (1.) The issue which arises for consideration in the present writ petition is as to whether in the facts and circumstances of the case, it would be justified and legal to terminate the pregnancy of the petitioner no.1 as prayed for, when the medical report reveals that the pregnancy has crossed a period of about 26 weeks. Records reveal that the petitioner no.1 is the wife of the petitioner no.2. Their marriage was solemnized on 4th February, 1999. A female child was born on 20th January, 2004. The petitioner no.1 (hereinafter referred to as the mother) conceived in the month of July, 2018 and consulted one Dr. Ranu Debnath on 22nd October, 2018, who advised her to undergo a blood test and ultra sonography. From the test reports it was ascertained that the mother had acquired Trisomy 21 pregnancy, which would severely affect the foetus. It was also disclosed that there was single umbilical artery and echogenic foci at the left ventricle. Thereafter, the mother also underwent Triple Scan and Aneuploidy Screening. All the doctors, who examined the mother, suggested that she should terminate her pregnancy. In the midst thereof, the period of pregnancy crossed twenty weeks. By an order dated 22nd January, 2019, this Court directed the mother to appear before the Medical Board on 24th January, 2019. On the said date, the mother was examined and the Medical Board placed the report before this Court, as directed.
(2.) Mr. Bose, learned advocate appearing for the petitioner, reiterating the grounds urged in the petition, submits that from the report of the Medical Board it is explicit that the baby is having a high risk of Down syndrome along with esophageal atresia and cardiac abnormality and as per the radiological evidence there is a possibility of gastrointestinal malformation and the baby would have to undergo prolonged and complicated neonatal course due to complication of pre-maturity as well as congenital malformation. Even after arriving at such findings, the Medical Board has surprisingly not consented towards medical termination of pregnancy (in short, MTP). Mr. Bose contends that in the said report, the doctors have not taken into account the profound mental agony suffered by the mother, which would cause a grave injury to her physical and mental health and as such the said report is an incomplete one. According to Mr. Bose, the observations in the report would reveal that there is a meagre chance towards birth of a normal baby. The petitioners have a daughter and in view of their financial constraints it would be an impossibility to nurture such a child born with severe abnormalities.
(3.) According to him, a woman's right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. The decision to terminate a pregnancy is not a frivolous one. When the mother does not want to continue with the pregnancy, then forcing her not to do so would amount to violation of the bodily integrity of the mother and would aggravate her mental trauma which would be delirious to her mental health. He further submits that according to the International Human Rights Law, a person is vested with human rights only at birth. An unwanted foetus is not an entity in human rights and no right to life can be attributed to it. The term foetus as defined in Section 2(bc) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, is a human organism. An unborn baby can always be aborted and the removal of foetus from the mother's womb cannot be construed to be an instance of curtailment of life of a baby. The mother's right to terminate her pregnancy stands on a higher pedestal. In support of such contention he has placed reliance upon a judgment delivered in the case of High Court on its own motion vs. State of Maharashtra reported in 2017 Criminal Law Journal. ;