Delhi High Court - Orders
Pragya Dixit vs Govt. Of Nct Of Delhi & Ors on 2 August, 2021
Author: Rekha Palli
Bench: Rekha Palli
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7114/2021
PRAGYA DIXIT ..... Petitioner
Through Ms.Snehal Mukherjee, Adv. with
petitioner in person.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through Mr.Tanveer Oberoi, Adv. for R-
3/AIIMS.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 02.08.2021
1. By way of the present petition, the petitioner, who has completed 22 weeks and 6 days of her pregnancy, seeks permission for medical termination of her pregnancy under Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as MTP Act, 1971). As per the petition, the foetus of the petitioner is suffering from open neural tube defect with lower lumbar scoliosis, lumbar meningomyelocele, mild ventriculomegaly consequent upon obliteration of cisternamagna and bilateral CTEV. It is the petitioner's case that if the pregnancy was taken to its logical conclusion, the chances of the offspring surviving are remote and, in any case, even if the offspring survives there is every likelihood of the child suffering from various life threatening deformities.
2. The question as to under what circumstances a pregnancy, which Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:02.08.2021 16:20:27 exceeds twenty weeks but does not exceed twenty-four weeks, can be terminated is answered by Section 3 of the MTP Act, 1971, which has been recently amended on 25.03.2021 by the MTP (Amendment) Act, 2021 which reads as under:
"3. When pregnancies can be terminated by medical practitioners -
....
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that--
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Explanation 1.--
For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.--For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed.
Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:02.08.2021 16:20:27(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.
(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.
(2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. (2D) The Medical Board shall consist of the following, namely:--
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be."
3. Keeping in view the fact that the petitioner had approached this Court when she had already completed 22 weeks of her pregnancy, this Court, vide order dated 28.07.2021, had directed the respondent No.3/AIIMS to constitute a Medical Board at the earliest and submit its report regarding the feasibility of termination of the petitioner's pregnancy.
4. Pursuant to the said order, respondent no.3 had constituted a board comprising of nine members. The said board which was headed by Dr. Madhulika Kabra, (Professor, Department of Paediatrics) has, after examining the petitioner as also her medical records, opined as Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:02.08.2021 16:20:27 under:
" The petitioner is a second gravid presently at 22 weeks + 4 Days POG by LMP and 21 weeks + 6 Days by USG Scan performed today i.e., 30.07.2021 at AllMS, New Delhi.
Ultrasound shows open Neural Tube defect (with Myelomeningocele) at Lumbo-Sacral Region with lower lumbar Scoliosis, along with Ventriculomegaly, obliteration of Cisterna Magna and B/L CTEV (Dating by USG 21 weeks + 6 Days on 30.01.2021 reviewed at AIIMS). In view of above findings, the board counselled the parents about the possibility of In-Utero as well as surgery after delivery for Myelomeningocele along with its possible outcomes The Board also explained the recovery phase if they choose to continue with the pregnancy.
The parents opted to discontinue the pregnancy, and Board agrees with the decision of the family.
In view of above, she can undergo Medical Termination of Pregnancy (MTP) at a tertiary care hospital. The usual risk associated with MTP at this gestation was explained to the couple."
5. From a perusal of the report, it is evident that the board after observing that the parents have taken a decision to discontinue with the pregnancy has agreed with the said decision of the parents. The board has also confirmed the fact that the foetus is suffering from various defects.
6. The petitioner and her husband, who have joined the proceedings through video conferencing, state that they are aware of the risks involved in the termination of the pregnancy at this stage, but after consultation with the doctors and their family members and keeping Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:02.08.2021 16:20:27 in view the deformities with which the foetus is suffering, have taken a considered decision of terminating the pregnancy.
7. Keeping in view the report of the expert committee constituted by respondent no.3/AIIMS as also the medical documents placed on record by the petitioner, I am of the view that the petition deserves to succeed and is, accordingly, allowed. The petitioner is granted permission to get her pregnancy terminated at a hospital of her choice.
8. At this stage, the petitioner submits that she would be approaching a gynaecologist at Lady Hardinge Hospital for undertaking the procedure for termination of her pregnancy. The petition is accordingly disposed of by directing the Medical Superintendent of Lady Hardinge Hospital, New Delhi to ensure that the procedure for termination of petitioner's pregnancy is undertaken at the earliest.
9. This Court would also like to express its appreciation for the steps taken by respondent no.3/AIIMS in promptly constituting the medical board as per directions of this Court.
REKHA PALLI, J AUGUST 2, 2021 kk Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:02.08.2021 16:20:27