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Tuesday’s Delhi High Court judgment allowing a woman to medically terminate her 33-week pregnancy hinged on two crucial aspects – substantial foetal abnormalities in the child and the ultimate decision to terminate pregnancy lying with the mother.
More importantly, in the absence of a definitive opinion from the medical board constituted to look into the matter, the verdict by Justice Prathiba M Singh reflects a progressive and proactive approach to the issue.
While rendering the judgment in favour of the woman, the Court referred to international and Indian legal precedents as well as studies on medical termination of pregnancy (MTP) and suggested that swift medical opinions and qualitative reports from medical boards were of “utmost importance” in such cases.
Advocate Anwesh Madhukar, who represented the petitioner in the case, explained to Bar & Bench the prospective effect of the decision, the dilemma in which mothers like his client find themselves and more.
How difficult was it to convince the Court to allow the termination of pregnancy when the medical opinion was against your client?
Anwesh Madhukar: The problem was that the medical board and the doctors misunderstood the directions of the Court. The Court did not seek permission of the medical board to terminate the pregnancy. An opinion was sought as to the consequences: if it is allowed what would happen; if it is not allowed what would happen; the state of the woman bearing the child.
If you read the “post script” in the judgment, the Court is a little pained to write what it had to write because they [medical board] simply say “permission denied”. They are not an authority to give permission or not give permission. Because if it was up to them, there would be no need to come to the Court to seek permission. Permission is only required by the Court under certain circumstances. It is not open to them to terminate unless there is an order of that sort.
On the one hand, they said it was compatible to life, and on the other, they said they could not predict the magnitude of the handicap, that there will be surgery involved. So they couldn’t comment on a lot of things, but for some reason, they decided to say no to termination. Ultimately, when you have said that there is abnormality the degree of which you can’t predict, then it is not open to the doctors. Then it is for the mother to decide what she wants to do – whether she wants to take the risk or not.
“On paper, we are a welfare state, but do we have the infrastructure? Do we have the healthcare?”Anwesh Madhukar
What was your client’s state when the case came to you?
AM: I am on the Delhi High Court Legal Services Committee panel and this case came through legal aid. I have done similar cases in the past, but the difference in those cases were that they were rape survivors. The threshold is different there. Fortunately, those cases hadn’t reached the 33-week stage.
The Court had permitted (termination) in those cases. But this was a different case. The woman is married. Her partner is very supportive. What was weighing on my mind was either way, there is no right answer to this. You can’t say abort the child because you are uncertain. You can’t say have the child because you are uncertain.
Uncertainty is something that the woman, her family and the child would have to live with. Ultimately, there will be an age difference, and after the parents, who will take care of the child? On paper, we are a welfare state, but do we have the infrastructure? Do we have the healthcare? Forget what the government does; in terms of a society, are we as accepting of somebody looking different? Forget abnormality. So, of course, the child would be suffering eventually. The parents suffer at this stage. And it is in nobody’s interest, really.
“Whatever a mother decides is not an easy decision. You have the power to get someone into this world and then to give it up.”
Anwesh Madhukar
If you see, there are four ultrasound reports. Probably, she did not want to believe there was something wrong. Finally, all of them said the same thing and she had no choice. It is also very difficult to raise any child, and when there is any abnormality, people don’t have the means. How does one take care of the child? All that weighs in the mind. She was obviously stressed about it.
It had already been 33 weeks and there was also a delay on the part of the hospital…
AM: Yes, the directions were passed on Friday and the Court had said to do this today itself and file a report by Sunday evening, and on Monday, the matter will taken up first on board. My client was at the hospital till 10:30 PM. Imagine the state. First, they were in the Court in the morning, and then they went to the hospital. And nobody was forthcoming and helping. Rather, the hospital first took the papers.
My colleague had to intervene saying there was an order, and asked them to return the papers at least. They returned the papers, but at around 10:30 PM, they asked her to come the next day and fill the application for MTP. It is very ridiculous. There is a direction. Where is the question of an application? They are directed to do it.
The next day, my client was there from 9 AM till 5 PM. They sent an email to the Court which I found about later.
Finally, on Monday, when the Court reprimanded the hospital in the morning, the ball started rolling. Then they gave the report at 4:30 PM. The Court considered all of this and it weighed in favour of the petitioner.
As someone handling MTP cases, how has your experience been?
AM: Abnormality cases, I haven’t come across too many. Mostly, there are cases where there is a late realisation and a lot of rape cases come to light because of this, as there are a lot of cases involving minors. At least in four such cases, I have got MTP orders. So they are quiet about it; they’re scared. Consent of a minor is of no consequence, but all said and done, if they consciously got into an act, it may be an offence…In one such case, both were minor—the girl and the boy.
When they miss their periods, they try and hide, thinking they are at fault so it should not come out in the open. Sometimes, the delay happens because of these things. The moment a minor goes to the hospital for termination, doctors have no choice but to inform the police.
Fortunately, the judges in Delhi rise to the occasion and as a matter of fact, direct the doctors to freeze the foetus so that the DNA examination can be conducted, because the defence of an accused will be something else and it may not be able to be proved.
“Fortunately, the judges in Delhi rise to the occasion and as a matter of fact, direct the doctors to freeze the foetus so that the DNA examination can be conducted.”
Anwesh Madhukar
Is this the first MTP case before the Delhi High Court involving a pregnancy duration of 33 weeks?
AM: When I was looking for decisions for this case, I couldn’t find any from the Delhi High Court that had gone beyond 28 weeks. Of course, there are cases from Mumbai, Kolkata and Kerala that were beyond 30 and 33 weeks also.
The High Court raised ethical concerns surrounding the termination. How did you convince the Court?
AM: The facts spoke for themselves. I only addressed the Court by saying there are ethical concerns definitely. The Court expressed concerns whether parents are now only going to have ‘perfect children’.
Of course, the answer is no. We should be more accepting and more adapting in that sense. Having said that, if I know that the child is going to suffer, there are two situations: one you already know, the other is you don’t know and the child is here. If you have found out before the child is born, then an option has to be there for the mother to exercise. It would have been different case if the child was already there and then it was…Euthanasia is still not allowed in the country.
“Many people will get its benefit. We struggle when the medical board finds it differently.”
Anwesh Madhukar
What is the prospective effect of today’s judgment?
AM: Many people will get its benefit. We struggle to convince the Court when the medical board advises against termination. Sensitivity reduces in the kind of work we do. I also raised it as an argument. The doctors said it was a normal, regular operation we do everyday. Of course, for you it is a normal regular operation.
If am arguing a murder appeal in the High Court, it is a normal day for me, but not for the person whose appeal is being argued. There is no certainty that I will succeed in the appeal. Similarly, there is no certainty that you would succeed in the operation.
