Calcutta High Court (Appellete Side)
In Re: Suparna Debnath & Anr vs State Of West Bengal & Ors on 29 January, 2019
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
29.01.19
Item No. 14
Court No.15
Avijit Mitra
A.S.T. No. 3 of 2019
In re: Suparna Debnath & Anr.
- Versus -
State of West Bengal & Ors.
Mr. Kallol Bose,
Mr. Apalak Basu,
Mrs. Pritha Bhaumik Basu,
Mr. Abhishek Khusari,
Mr. Nazir Ahmed,
Mr. Samik Sarkar
For the Petitioners
Mr. Abhratosh Majumder, ld. A.A.G.
Mr. Soumitra Mukherjee,
Mr. Nilotpal Chatterjee
For the State
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.
2
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.
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.
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.
3
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.
According to Mr. Bose each member of the Medical Board ought to have
separately assessed the health condition of the mother and ought to have given
independent opinions. In the case of Sarmishtha Chakraborty & anr. vs. Union of India,
Secretary & Ors. reported in (2018) 13 SCC 339 the Hon'ble Supreme Court had the
assistance of independent observations made by the respective members in the Medical
Board. On the basis of such detailed consideration of the medical condition of the
patient, the Board had submitted a comprehensive report. Such procedure has not been
adopted by the present Medical Board and the report submitted is vague.
Drawing the attention of this Court to an order passed by this Court in a writ
petition being W.P. No.246 (W) of 2019, Mr. Bose submits that the Court is required to
consider various factors like stage of pregnancy, danger to life of the mother, post-natal
health and period of survival of the child and to pass appropriate direction towards
medical termination of pregnancy even in the event the pregnancy has crossed a period
of twenty weeks.
4
Section 3 of the Medical Termination of Pregnancy Act, 1971 (in short, the said
Act of 1971) provides for termination within a period of twenty weeks. However, an
exception is provided under Section 5 of the said Act of 1971. The said exception is that
termination of pregnancy beyond the said period of twenty weeks is permissible in the
event such termination is necessary to save the life of the pregnant woman.
In the conspectus of facts, Mr. Bose submits that the Writ Court should extend its
assistance and grant necessary permission to the mother to terminate her pregnancy
particularly assessing the mental trauma that would be suffered by the petitioners in
the event a child is born with severe abnormalities.
In support of the arguments advanced, Mr. Bose has also placed reliance upon
judgments delivered in X versus Union of India and Others reported in (2016) 14 SCC
382, in Mamta Verma vs. Union of India & ors. reported in (2018) 14 SCC 289 and in
Sonali Sandeep Jadhav & anr. vs. Union of India & ors.
Per contra, Mr. Majumder, learned Additional Advocate General appearing for the
State respondents submits that from the medical report as early as on 30th November,
2018, it was within the knowledge of the petitioners that the Trisomy 21 screening had been "screened positive". At that juncture, pregnancy was only of about 18 weeks and there had been a delay on the part of the petitioners to approach this Court.
He argues that as per the provisions of the said Act of 1971 pregnancy can be terminated where the length of pregnancy exceeds twelve weeks but does not exceed twenty weeks. The foetus is suffering from Down syndrome and with the availability of neonatal care, which is well advanced in many centres, it is likely that the baby would survive the early neonatal period. The mother has undergone caesarian operation at the time of birth of her first child and is having a scarred uterus and as such it has been rightly observed by the Medical Board that it would be safe and judicious to terminate 5 the pregnancy by caesarian section and that the prognosis of the baby would also be better if it is delivered at the said term. The possibility of gastrointestinal malformation, as has been referred to in the said report, is amenable to surgical correction and as such at this advanced stage of twenty six weeks it would not be appropriate to grant permission towards medical termination of such pregnancy.
As regards the judgment delivered in the case of Sarmishtha (Supra), Mr. Majumder submits that the same is distinguishable on facts. The consistent opinion of the doctors in the said case had been that the baby would suffer severe cardiac malformation and would require intensive monitoring and staged management through surgical procedures which would have high risk of morbidity and mortality depending upon the post-natal course. Such risk of morbidity and mortality does not exist in the present case. In the instant case, a Medical Board, consisting of eleven experts, has opined that there is every possibility that the baby would be born alive and would survive the early neonatal period.
Mr. Majumder has placed reliance upon a judgment delivered in the case of Savita Sachin Patil & anr. Vs. Union of India reported in (2017) 13 SCC 436 and a judgment delivered in the case of Sheetal Shankar Salvi & anr. vs. Union of India & ors. reported in (2018) 11 SCC 606. Drawing the attention of this Court to paragraphs 6, 7 and 8 of the judgment delivered in the case of Savita Sachin Patil (supra), he submits that the facts involved in the said matter are akin to the present case inasmuch as in the same the foetus was suffering from Trisomy 21 and was likely to have mental and physical challenges.
In support of his argument Mr. Majumder has also placed reliance upon an article pertaining to "Seminars in Fetal & Neonatal Medicine" wherein five lethal 6 malformations have been detailed which would warrant premature termination of pregnancy. Down syndrome is not such a malformation.
In reply, Mr. Bose submits that though the pregnancy is in its 26th week, having regard to the danger to the mother's life and the condition of the foetus and as the mother has exercised an informed choice, permission for termination of pregnancy should be granted.
The argument of Mr. Majumder that there had been a delay on the part of the petitioners to approach this Court since in the test report dated 30th November, 2018 Trisomy 21 was screened to be positive, is not acceptable. The petitioners are not experts in medicine and the doctors confirmed that it was a case of Trisomy 21 only on the basis of a confirmatory test with amniocentesis and focused ultrasonography, which was done on 5th January, 2019, as would be explicit from the document at page 39 of the writ petition.
However, it needs to be ascertained as to whether the present case comes within the exception clause as provided under Section 5 of the said Act of 1971. From the medical report, it does not appear that the life of the mother would be endangered if she is allowed to continue with her pregnancy and as such the claim towards termination of pregnancy does not come within the said exception. The present claim is not under Section 3(2)(b)(i) of the said Act of 1971 inasmuch as the pregnancy has crossed 26 weeks.
A decision is an authority for what it decides and not what can be logically deduced therefrom and that even a slight distinction in fact or an additional of fact may make a lot of difference in the decision making process. The judgment in the case of Sarmistha (Supra) is distinguishable on facts in as much as it was the specific opinion of the doctors therein that there is a threat of severe mental injury, if the pregnancy is 7 continued and that after birth, the child would have to face a high risk of morbidity and mortality. In the case of Mamta Verma (Supra), the foetus was found to be without a skull and it was not in a position to survive and the condition of the foetus was not compatible with life. In the case of X -vs- Union of India (Supra) the medical opinion was that in view of severe multiple congenital anomalies, the foetus would not be compatible with extra-uterine life. In the case of Sonali Sandip Yadav (Supra), the medical opinion was that continuation of pregnancy would be hazardous.
Indisputably, today the mother has crossed 26 weeks of pregnancy. It means that the pregnancy is now in the third and last trimester term. At this stage, almost all the organs of the foetus have developed. Furthermore, as per the medical report, the prognosis of the baby would be better if it is delivered near term. The doctors have opined that even with the Down syndrome the baby is likely to survive. The gastrointestinal malformation is also amenable to surgical correction.
There is always a difficulty in choosing a precise point when the unborn gets a right to life. The right answer may lie in accepting that there are degrees of right to life and the foetus gets a stronger right to life as it develops in the mother's womb. The more it develops, the more difficult it becomes to take a decision to abort the same. At this advanced stage of 26 weeks, the right of the foetus to live, in my opinion, outweighs the mental trauma that may be suffered by the mother in giving birth to the said child.
For the reasons discussed above, this Court is unable to grant permission to the petitioner no.1 to terminate her pregnancy and the writ petition is, accordingly, dismissed.
There shall, however, be no order as to costs.
8Let photostat plain copy of this order, duly counter-signed by the Assistant Registrar (Court), be given to the learned advocates appearing for the parties, on their usual undertaking.
(Tapabrata Chakraborty, J.)