Recently a division bench of Justices Gautam Patel and Justice SG Dige of Bombay High court observed:

“The right to choose is the Petitioner’s. It is not the right of the Medical Board. And it is also not the right of the Court to abrogate the Petitioner’s rights once they are found to fall within the contemplation of the law.”

The court was hearing a petition filed by a married woman, seeking to terminate her pregnancy on account of anomalies found in the foetus like microcephaly  and lissencephaly (smaller head and brain).
The petitioner contended that she won’t be able to bear the financial expenses of an infant born with such conditions.

Pursuant to the court’s earlier orders, a Medical Board of Sassoon Hospital from Pune submitted a report stating that the “deformity” was “correctable at government and major municipal hospitals free of cost” and opined that considering the advanced stage of the pregnancy, termination was not recommended.

However, Advocate Aditi Saxena argued that under Section 3 of the Medical Termination of Pregnancy Act 1971, the length of the pregnancy wasn’t a criterion in light of severe foetal anomalies. Moreover, the mother was fit to undergo the procedure, she said.

The bench agreed and said,

“It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today that there is no possibility of having a normal healthy baby at the end of this delivery.”

“In cases such as these, we believe Courts must calibrate themselves to not only the facts as they stand but must also consider that what these cases present are, above all, profound questions of identity, agency, self-determination and the right to make an informed choice.”, the bench added.

The court wondered about what would happen if the petitioner was unable to tend to the child once it was born. “Is she then to be forced to make the next decision, to give up a child in adoption?”

It further said, “Accepting the Medical Board’s view is therefore not just to condemn the foetus to a substandard life but is to force on the Petitioner and her husband an unhappy and traumatic parenthood. The effect on them and their family cannot even be imagined.”

While commenting on the MTP Act, the court said:

“The Act is of 1971. It was ahead of its time. But in the cold sterility of a legislation, we must discern where justice lies when it is to be applied to the human condition. This is not a case where a blanket invocation of this or that provision will provide an answer. We must ensure above all that the rights of the Petitioner — including those enunciated by the Supreme Court — are never compromised in the sometimes blind application of a statute.”

The court also said, “Justice may have to be blindfolded; it can never be allowed to be blindsided. We are agnostic about the relative positions of parties. We can never be agnostic about where justice needs to be delivered.”