Calcutta High Court (Appellete Side)
Suparna Debnath & Anr vs State Of West Bengal & Ors on 18 February, 2019
Bench: Biswanath Somadder, Arindam Mukherjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE ACTING CHIEF JUSTICE BISWANATH SOMADDER
& THE HON'BLE JUSTICE ARINDAM MUKHERJEE MAT 181 OF 2019 with CAN 1303 OF 2019 SUPARNA DEBNATH & ANR.
VS.
STATE OF WEST BENGAL & ORS.
For the Appellants / Applicants : Mr. Kallol Basu,
Mr. Apalak Basu,
Ms. Pritha Bhaumik Basu,
Mr. Abhishek Kasari,
Mr. Nazir Ahmed......Advocates
For the State : Mr. Abhratosh Majumdar, Ld. AAG
Mr. Md. T. M. Siddiqui,
Mr. Soumitra Mukherjee,
Mr. Nilotpal Chatterjee......Advocates
Heard on : 15.02.2019
Judgment on : 18.02.2019
BISWANATH SOMADDER, A.C.J. :-
The instant appeal has been preferred against a judgment and order dated 29th January, 2019 passed by a learned Single Judge in W. P. No.2462(W) of 2019 (previously numbered as AST No.3 of 2019). By the impugned judgment and order, the learned Single Judge proceeded to dismiss the writ petition filed by the writ petitioners.
The instant appeal has been preferred by the writ petitioners. The appellant / writ petitioner no.1 is the wife of the appellant / writ petitioner no.2. Their marriage was solemnized on 04.02.1999. A female child was born on 20th January, 2004. The appellant / writ petitioner no.1 (hereinafter referred to as "the mother") conceived again in the month of July, 2018 and consulted one doctor by the name of Ranu Debnath on 22nd October, 2018 who advised her to undergo a blood test and ultrasonography. From the test reports, it was ascertained that the mother had acquired a Trisomy 21 pregnancy which would severely affect the foetus. It was also ascertained that there was a single umbilical artery and echogenic foci at the left ventricle. Subsequently, the mother underwent a triple scan and aneuploidy screening. All the doctors who examined the mother suggested that she should terminate her pregnancy. However, by this time, the period of pregnancy had crossed 20 (twenty) weeks. The writ petition was filed on 22nd January, 2019 and on that very day, an order was passed by the learned Single Judge directing the mother to appear before a Medical Board on 24th January, 2019. On the said date, the mother was examined and the Medical Board subsequently placed a report before the learned Single Judge, as directed. The report reads as follows:-
"As per Notice No. SSKM/MSVP/125/2019 dated 24th January, 2019 in connection with order of Hon'ble Justice Tapabrata Chakraborty of A.S.T. No. 3 of 2019 in the matter of "Suparna 2 Debnath & Anr. - vs. - State of West Bengal and Ors, the medical board constituted by the Medical Superintendent-cum- Vice Principal, IPGMER-SSKM Hospital, Kolkata, examined the couple as well as the available relevant documents and came to the following conclusion:
Mrs. Suparna Debnath, 39 years, P 1+1 (last delivery by caesarean section) attended a private Gynecologist with history of amenorrhea for 3 (three) months. During routine antenatal testing USG was done on 4th October, 2018, which revealed that the pregnancy was apparently normal and was of 9 weeks duration.
2nd USG was done on 27th November, 2018 and even then no detectable evidence of fetal anomaly was observed.
However, on screening she was found to be high risk for chromosomal anomaly (trisomy 21) and for which confirmatory tests were done with amniocentesis and focused ultrasonography. These confirmed it to be a case of Down syndrome along with possibility of esophageal artesia and cardiac abnormality.
The radiological evidence suggests possibility of gastrointestinal malformation (esophageal artesia with or without tracheo- esophageal fistula) which is amenable to surgical correction, though the baby will have prolonged and complicated neonatal course due to complication of pre-maturity as well as for congenital malformation and the outcome is unpredictable.3
From the point of view of the obstetricians, termination of pregnancy at 26 (twenty six) weeks+ gestation in a mother with scarred uterus (previous caesarean section), the safe and judicious means of termination should be by caesarean section. In this case, the baby is most likely to be born alive and with the available neonatal care (which is well advanced in many centers) it is likely to survive the early neonatal period.
The prognosis of the baby will however, be better if it is delivered near term."
The learned Single Judge thereafter took up the writ petition for final disposal and after considering the respective contentions of the parties and upon taking note of the medical report came to the following conclusion:-
"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 4 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."
The issue which arises for consideration in the present appeal is the same issue which arose for consideration before the learned Single Judge; i.e., whether in the facts and circumstances of the instant case it would be justified and legal to terminate the pregnancy of the mother as prayed for, particularly when the medical report dated 24th January, 2019 reveals that the pregnancy has crossed a period of about 26 (twenty six) weeks.
Before we look into the scope and application of the law on the subject, we need - at first - to look into the relevant portion of the Medical Board's report, minutely. The Medical Board's report reveals that the foetus has been found to be at a high risk for chromosomal anomaly (Trisomy 21), based on confirmatory tests which were done with amniocentesis and focused ultrasonography. These confirmed it to be a case of Down syndrome along with the possibility of esophageal artesia and cardiac abnormality. The radiological evidence suggested possibility of gastrointestinal malformation (esophageal artesia with or without 5 trachea-esophageal fistula). The report has also suggested that the baby will have a prolonged and complicated neonatal course due to complication of pre-maturity as well as for congenital malformation and the "outcome is unpredictable".
The Medical Board, therefore, has clearly opined that the baby is likely to be born with Down syndrome, gastrointestinal malformation (esophageal artesia with or without trachea-esophageal fistula), cardiac abnormality and will require surgical intervention, prolonged and complicated neonatal course, the outcome of which is unpredictable. In other words, such gastrointestinal malformation (esophageal artesia with or without trachea-esophageal fistula) along with congenital malformation may not be successfully corrected surgically other than preserving the life of the baby during the course of surgery. The Medical Board has also not suggested any curative procedure for treating Down syndrome (Trisomy 21), which implies that the same cannot be cured. How cardiac abnormality will be corrected has also not been spelt out. As such, it is evident that the baby - even if it is born alive - will lead a severely compromised existence and will be dependent on parents and the society at large for the rest of his / her life. It is also certain that his / her life span will be unpredictable since it is clearly and specifically stated in the Medical Board's report dated 24th January, 2019 that "the outcome is unpredictable".
The appellants in their writ petition have admitted their financial constraints. Even then, they were ready and willing to give birth to a child. 6 However, in the light of the peculiar facts and circumstances as stated above, it is apparent that continuance of the pregnancy would involve a risk to the life of the mother and may also cause grave injury to her physical and mental health apart from the known substantial risk concerning the life of the child, once born.
The codified law relating to medical termination of pregnancy - post independence - came into existence in the year, 1971. The statute, The Medical Termination of Pregnancy Act, 1971, contains a total of 8 (eight) sections. It has been amended in the year 2002 in terms of an Amendment Act which is termed as the Medical Termination of Pregnancy (Amendment) Act, 2002. The statement of Objects and Reasons for the purpose of enactment of The Medical Termination of Pregnancy Act, 1971 reads as follows :-
"Statement of Objects and Reasons.-The provisions regarding the termination of pregnancy in the Indian Penal Code which were enacted about a century ago were drawn up in keeping with the then British Law on the subject. Abortion was made a crime for which the mother as well as the abortionist could be punished except where it had to be induced in order to save the life of the mother. It has been stated that this very strict law has been observed in the breach in a very large number of cases all over the country. Furthermore, most of these mothers are married women, and are under no particular necessity to conceal their pregnancy.7
2. In recent years, when health services have expanded and hospitals are availed of to the fullest extent by all classes of society, doctors have often been confronted with gravely ill or dying pregnant women whose pregnant uterus have been tampered with, a view to causing an abortion and consequently suffered very severely.
3. There is thus avoidable wastage of the mother's health, strength and, sometimes, life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure - when there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds - such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.; and (3) eugenic grounds
- where there is substantial risk that the child, if born, would suffer from deformities and diseases."
It is evident from the objects and reasons quoted above that it contains, inter alia, eugenic grounds - where there is substantial risk that the child, if born, would suffer from deformities and diseases - as one of the reasons for which the Parliament proposed measure seeking to liberalise certain provisions relating to termination of pregnancy. It is also apparent that the Parliament was conscious of avoidable wastage of the mother's health, strength and, sometimes, life.
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In the instant case, admittedly, the pregnancy has crossed a period of 20 (twenty) weeks. Section 3 lays down, inter alia, the time-frame within which pregnancies may be terminated by registered medical practitioners. For convenience, the said section in its entirety has been reproduced hereinbelow :-
"3. When pregnancies may be terminated by registered medical practitioners. - (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(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 twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of 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 9
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped."
Although section 3(2)(b), as quoted above, does not squarely apply to the facts of the instant case (since the length of pregnancy has already exceeded twenty weeks), we need to examine as to whether the statute carves out certain exceptions and whether the principles analogous thereto will govern the peculiar facts and circumstances of the instant case taking into account the statement of Objects and Reasons as quoted above.
We have already discussed the finding of the Medical Board. The Medical Board has clearly opined that the baby is likely to be born with Down syndrome, gastrointestinal malformation (esophageal artesia with or without trachea-esophageal fistula), cardiac abnormality and will require surgical intervention, prolonged and complicated neonatal course, the outcome of which is unpredictable. Thus, there is a substantial risk that if the child is born, it is likely to be suffering from grave physical or mental abnormalities as to be seriously handicapped.
We need to ponder at this stage as to whether continuance of the pregnancy would involve a risk of causing grave injury to the mental health of the pregnant woman and whether the Constitutional safeguard for protection of life can be extended to her in the facts of the instant case.
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The pregnant woman in the instant case, being the appellant / writ petitioner no.1, undoubtedly, is entitled to protection of her life in terms of Article 21 of the Constitution of India, which reads as follows :-
"21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law."
This Constitutional protection of life and liberty has been statutorily recognised and is embedded within the Medical Termination of Pregnancy Act, 1971. If one reads the statement of objects and reasons carefully along with the various provisions of the statute, particularly in the backdrop of Article 21 of the Constitution of India, one will find that the protection it affords, encompasses within its fold, the valuable right of the mother to lead a normal healthy life - post delivery - and not a compromised existence that affects her mental health, causes agony and pain, cripples her economically, without the State coming forward to address these critical issues and unburdening - or at least - alleviating her sufferings. It must also be borne in mind that her sufferings include the sufferings of her child, whose compromised existence is inextricably linked with the mother. The role of the State in this regard is crucial; both for the well-being of the mother and that of her child. The State, in such a situation, needs to adopt a pro-active welfare role and must come forward to provide all support required to the mother and her child.
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If one reads section 3(2)(b)(i), quoted earlier, the continuance of the pregnancy - in the facts of the instant case - would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health. However, the pregnancy has exceeded the time-frame as specified under section 3(2)(b). We notice that an exception to the time-frame as also the requirement of opinion of not less than two registered medical practitioners, as stated in section 3(2), has been clearly provided under section 5(1), which reads as follows:-
"5. Sections 3 and 4 when not to apply. - (1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman."
So far as the foetus of the unborn child is concerned, recognition of eugenic grounds as a ground for termination of pregnancy is apparent from section 3(2)(b)(ii). If this pregnancy is allowed to complete its full term, its effect will be devastating; both to the mother and the child. The Medical Board's report dated 24th January, 2019 has clearly stated several grave abnormalities which includes chromosomal anomaly (Trisomy 21), gastrointestinal malformation (esophageal artesia with or without tracheo-esophageal fistula) and cardiac abnormality. The new-born baby, apart from surgery, will have to undergo a 12 prolonged and complicated neonatal course due to complication of pre-maturity as well as congenital malformation and the outcome of which is unpredictable.
It is palpably evident that the foetus in the instant case can neither evolve or develop further naturally to reverse the abnormalities already detected by medical science and produce a quality life once the child is born, which is clear from the report of the Medical Board. The mother's personal life and liberty, as understood under Article 21 of the Constitution of India, is inextricably linked with that of the unborn child and will continue even after she gives birth to the child. However, her life is paramount at this stage. No foetus can evolve or develop naturally if the mother's life is not supported. The statute has clearly provided for the mother's health, strength and also life. There cannot be any manner of doubt whatsoever that in the facts of the instant case if the pregnancy is allowed to continue and the mother gives birth to the child, not only the child but the mother will have a compromised existence. Her quality of life - as it stands today - cannot be the same. Her right to live with dignity will also be squarely affected. This is more so since the State has not come forward to assure the mother - with certainty - that the compromised existence of her life and that of her unborn child shall be positively reversed, either through medical technology or by means of economic support. As such, allowing the pregnancy to complete its full term - in the given facts and circumstances of the case - will severely compromise the quality and dignity of life both in respect of the mother 13 and her unborn child, thereby squarely affecting the protection of life and personal liberty as enshrined under Article 21 of the Constitution of India.
Several judgments were cited by both the parties before the learned Single Judge which were considered and distinguished. As such, we need not go into a detailed discussion of the same, once again. In this regard, we have noted the observation made by the learned Single Judge and reiterate that a decision is an authority for a proposition based on certain set of facts and even a single distinction of any fact or an additional fact can alter the applicability of its ratio. We must hasten to add here that even though in the case of pregnant women, there is a compelling State interest in order to protect the life of the prospective child, there is a corresponding obligation - nay, a bounden duty - on the part of the State to provide quality and dignity to such life and such quality and dignity of life should extend to the mother as well, whose life is paramount at the stage of pregnancy. On the other hand, if it is compromised, the provisions contained under section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971, cannot operate as an absolute bar and can extend beyond 20 (twenty) weeks. This is possible if one takes into account the intention of the Parliament to enact the law for such reasons as spelt out in the statement of objects and reasons and adopts the principles governing the exception provided under section 5(1), that may well be applicable in certain exceptional and rare circumstances, such as the one presented before us.
14
In the light of the above discussion and considering the extraordinary facts and circumstances, we allow the writ petition by granting liberty to the appellant / writ petitioner no.1 to seek medical termination of pregnancy in a place as specified under section 4(b) of the Medical Termination of Pregnancy Act, 1971, provided that the procedure itself is safe at this stage for the life of the mother.
The appeal and the application for stay are disposed of accordingly. Urgent photostat certified copy of this order/judgment, if applied for, be supplied to the parties on a priority basis.
I agree, (ARINDAM MUKHERJEE, J.) (BISWANATH SOMADDER, A.C.J.) Asraf.
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