Calcutta High Court (Appellete Side)
Smt. Nivedita Basu vs The State Of West Bengal & Ors on 17 February, 2022
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
17.02.2022
Court No.13
Item No.18
sp
WPA 2513 of 2022
Smt. Nivedita Basu
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Ms. Sutapa Sanyal,
Mr. Subhajit Dan
... for the petitioner.
Mr. Amitesh Banerjee, ld. Sr. St. Counsel,
Mr. T.M. Siddiqui,
Mr. Nilotpal Chatterjee
...for the State
The writ petitioner has authorized her husband to
affirm an affidavit on her behalf, since she has not been
able to be present physically. She is however present
virtually. She and her husband have been identified by
her Advocate who is physically present in Court.
The husband has affirmed an affidavit today at
1.30 pm before the Oath Commissioner indicating that he
and his wife, the petitioner, have carefully considered the
medical report that has been forwarded to them by
counsel for the State and their Advocate Ms. Sutapa
Sanyal. It has also been averred that the petitioner and
her husband are desirous of getting her pregnancy
terminated medically.
The petitioner has orally indicated to this Court
that she is aware of all medical consequences both on the
child and herself if the pregnancy is taken to term and/or
if the child is delivered prematurely.
The petitioner and her husband have both
unequivocally submitted before this Court and on
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affidavit that notwithstanding uncertainty in course of
surgery of this nature, and notwithstanding the
consequences on the health of the petitioner and future
consequences clearly indicated in the medical report, they
wish to proceed with termination of the pregnancy.
The affidavit is taken on record. A copy of the
affidavit is made available to the counsel for the State.
The petitioner and her husband have
unequivocally acknowledged before this Court that they
shall not hold any medical practitioner, or any of the
advocates including there own and any court of any
consequences that may arise out of the procedure of
medical termination of pregnancy.
This Court has carefully considered the medical
report dated February 15, 2022 submitted by the Medical
Superintendent-cum-Vice Principal, IPGMER-SSKM
Hospital, Kolkata including therewith a medical opinion of
a team of nine Senior Doctors. The report of the Medical
Board is set out hereinbelow.
The Decision of the Medical Board called I
accordance to the MSVP, Notice Memo No.
SSKM/MSVP/156/2022, Dated, 14.02.2022 and in
connection Hon'red Court Order Dated, 11.02.2022
is as follows:
Mrs. Nivedita Basu, 36 years, primigravida has
presented at 34 weeks 6 days of gestation with the
USG report showing open spina bifida (lumbosacral
myelomeningocele) with lemon sign (Arnold Chiari
malformation) and severe ventriculomegaly
(hydrocephalus).
Baby born with open defect in spinal cord with
malformation of brain will need immediate spinal
surgery and shunt surgery for enlarged head. Even
after surgery the baby will likely to suffer from
serious physical, neurological and developmental
problems like paralysis of limbs, lack of bowel and
bladder control, convulsion, cognitive delay and
visual problems.
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In any case, if the baby is born premature the
complications of prematurity will further aggravate
the clinical condition of the infant.
The board offers the option of admission in our
SSKM Hospital at any time from today whenever the
woman wishes. Subsequent procedure for
termination of pregnancy will start only after
admission. Mrs. Nivedita Basu with her husband
were explained the different methods of termination
of pregnancy at this stage including surgical
intervention if pharmacotherapy fails. Whatever
method is adopted as treatment has got its inherent
complications for the mother including postpartum
hemorrhage which may rarely lead to maternal
mortality.
After delivery of the baby there is substantial chance
that it will be born alive when the neonatologists are
likely to offer palliative and supportive treatment.
The risk of premature delivery has also been
explained to the couple. After explaining all the pros
and cons the couple is allowed to take their own
decision regarding date of admission and mode of
therapy. Accordingly all the board members agree to
convey the verdict of the board to the Hon'ble Court.
Sd/- Sd/- Sd/-
Prof. S.C. Biswas Prof. Utpalendu Das Prof. Supratim Datta
Prof. & HOD Prof. & HOD Prof. & HOD
Dept. of G&O Dept. of Radiology Dept. of Ped. Med
IPGME&R-SSKM, KOL IPGME&R-SSKM, KOL IPGME&R-SSKM, KOL
Sd/- Sd/- Sd/-
Prof. S. Mukherjee Prof. R. Sarkar Prof.G. Gangopadhyay
Prof. & HOD Prof. & HOD Prof. & HOD
Dept. of Neonatology Dept. of Ped. Surgery Dept. of Neuro. Med
IPGME&R-SSKM, KOL IPGME&R-SSKM, KOL IPGME&R-SSKM, KOL
Sd/- Sd/- Sd/-
Dr. Anuradha Ghosh Dr. Pradip Ghosal Ms. Amrita Mitra
Assoc. Prof Assoc. Prof Asst. Prof
Dept. of G&O Dept. of Cardiology Dept. of Clinical
IPGME&R-SSKM, KOL IPGME&R-SSKM, KOL Phychologist
IPGME&R-SSKM, KOL
An unequivocal view expressed by such doctors is
that the likelihood of a healthy child being born out of
this pregnancy is remote. Even if a child is born, the
chances of survival are slim. It is also opined that even if
a child is born by medical intervention, it is likely to
develop severe impairments and long term ailments and
would have limited mortality.
The risks and consequences to the petitioner, that
would follow in course of such procedure i.e. for
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terminating of pregnancy at this stage have also been
clearly indicated and the petitioner as well as her
husband have carefully considered the same and have
accepted such risks. It also appears that there is no
serious risk to the life of the petitioner.
Ms. Sutapa Sanyal, learned counsel has cited two
decisions. The first of which is in the case of Sarmishtha
Chakrabortty and another vs. Union of India
Secretary and others reported in (2018) 13 SCC 339.
This decision has been applied by the Division Bench of
the Bombay High Court in the case of Shaikh Ayesha
Khatoon vs. Union of India and others reported in
2018 SCC Online Bom 11.
In Sarmishtha Chakrabortty (supra) the
Supreme Court has stated as follows at paragraphs 8 to
12.
"8. Mr A.K. Panda, learned Senior Counsel appearing
for the Union of India has drawn our attention to two
other orders, one passed in Savita Sachin
Patil v. Union of India [Savita Sachin Patil v. Union of
India, (2017) 13 SCC 436] and another in Sheetal
Shankar Salvi v. Union of India [Sheetal Shankar
Salvi v. Union of India, (2018) 11 SCC 606] . In Savita
Sachin Patil [Savita Sachin Patil v. Union of India,
(2017) 13 SCC 436] , the Court declined to grant
permission by holding, thus: (SCC p. 438, paras 6-9)
"6. ... As regards the prognosis, the said medical
report clearly does not and possibly cannot,
observe that this particular foetus will have
severe mental and physical challenges. It states
that the "baby is likely to have mental and
physical challenges".
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7. In the earlier part of the said medical report,
there is no observation made by the aforestated
Medical Board that every baby with Down
Syndrome has low intelligence, but it was
observed that "intelligence among people with
Down Syndrome is variable and a large proportion
may have an intelligence Quotient of less than 50
(severe mental retardation)".
8. In any case, it is not possible to discern the
danger to the life of Petitioner 1 in case she is not
allowed to terminate her pregnancy. In the facts
and circumstances of the case, it is not possible
for us to grant permission to Petitioner 1 to
terminate the life of the foetus.
9. In view of the above, as it presently advised, we
decline Prayer (a) of the petitioners for directing
the respondents to allow Petitioner 1 to undergo
medical termination of the pregnancy."
(emphasis supplied)
9. In Sheetal Shankar Salvi [Sheetal Shankar Salvi v. Union of India, (2018) 11 SCC 606] , after perusing the report, the Court observed that there is no danger to mother's life and the likelihood that the baby may be born alive and survive for variable period of time, and, therefore, it would not be appropriate to allow Petitioner 1 to undergo medical termination of her pregnancy.
10. The orders [Savita Sachin Patil v. Union of India, (2017) 13 SCC 436] , [Sheetal Shankar Salvi v. Union of India, (2018) 11 SCC 606] which have been referred to by Mr Panda, in our considered opinion, rest on their own facts. Frankly speaking, cases of this nature have to rest on their own facts because it shall depend upon the nature of the report of the Medical Board and also the requisite consent as engrafted under the Medical Termination of Pregnancy Act, 1971.
611. In the instant case, as the report of the Medical Board which we have produced, in entirety, clearly reveals that the mother shall suffer mental injury if the pregnancy is continued and there will be multiple problems if the child is born alive. That apart, the Medical Board has categorically arrived at a conclusion that in a special case of this nature, the pregnancy should be allowed to be terminated after 20 weeks.
12. In Suchita Srivastava v. State (UT of Chandigarh) [Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570] , the Court has expressed the view that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution. She has a sacrosanct right to have her bodily integrity. The case at hand, as we find, unless the pregnancy is allowed to be terminated, the life of the mother as well as that of the baby to be born will be in great danger. Such a situation cannot be countenanced in Court."
Applying the said dicta in the facts of the case particularly the medical report it is clear and explicit, that there are remote chances of the child being born out of the instant pregnancy surviving or leading ay normal life.
The risks to the mother as well as the child are also highlighted in no uncertain terms.
Considering the entire gamut of facts and circumstances, this Court permits the petitioner to medically terminate her pregnancy at an authorized hospital and/or medical facility.
With the aforesaid observations, the writ petition is disposed of.
There shall be no order as to costs.
7All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.)