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Judgment
Vivek Rusia, J
The petitioner has filed the present petition seeking direction to the respondents to terminate her pregnancy which is exceeding 22 weeks.
According to the petitioner, the fetus is having multiple congenital defects in the brain and other parts of the body, therefore, she and her husband have
unanimously decided to go for termination of the pregnancy but by that time, the pregnancy has exceeded 20 weeks, hence in view of Section 3 of the
Medical Termination of Pregnancy Act, 1971 the doctors are not ready to terminate the pregnancy, hence she has filed the present petition.
Vide order dated 25.11.2020, this Court has directed the petitioner to appear before the Medical Superintendent, M.Y. Hospital to undergo fitness
examination for termination of pregnancy. In compliance of the said order, the Medical Board was constituted in M.Y. Hospital, Indore. That six
members viz. Professors of the Department of Obs. & Gynaecology, Anaesthesia, Paediatric and Medicine formed the Medical Board and examined
the medical condition of the petitioner. As per the report given by Board, the patient has multiple congenital anomalies in the fetus and by LMP she is
22 weeks 5 days pregnancy with previous LSCS and elderly gravid. Pregnancy can be terminated with a high risk of uterine rupture during MTP with
two unit blood arranged. The said report of the Medical Board is reproduced below :
“Mamta w/o. Jitendra Alawa 36 yrs as per review of target scan dated 20/11/2020 and 21/11/2020. patient has multiple congenital anomaly in fetus
and by LMP she is 22 weeks 5 days pregnancy with previous LSCS and elderly gravid. Pregnancy can be terminated with high risk of uterine rupture
during MTP with two unit blood arranged.â€
In support of the contention, the petitioner has placed reliance over the orders passed by this Court in W.P. No.17797/2019 decided on 12.9.2019 and
W.P. No. 9404/2016 decided on 21.12.2016 in which, in similar facts and circumstances, this Court has permitted termination of pregnancy.
Since six members team of senior doctors has given the opinion that the patient has multiple congenital anomalies in the fetus and that the pregnancy
can be terminated with a high risk of uterine rupture during MTP with two unit blood arranged. The petitioner being major is required to give her
consent for the same. In view of the above, the petitioner is free to go for termination of the pregnancy .
That ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a ""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."" [as per Section 3(2)(ii)] or when ""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."" [as per Section 3(2)(ii)]. While the
satisfaction of one medical practitioner is required for terminating a pregnancy within twelve weeks of the gestation period, two medical practitioners
must be satisfied with either of these grounds in order to terminate a pregnancy between twelve to twenty weeks of the gestation period.
In all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with a termination of pregnancy. This
position has been unambiguously stated in Section 3(4)(b) of the MTP Act, 1971. In a recent judgment passed by the Apex Court in the case of Z V/s.
State of Bihar & Others reported in (2018) 11 SCC 572 has held that legislative intention of M.T.P. Act, 1971 and the decision in case of Suchita
Shrivastava (supra) prominently emphasis on personal autonomy of a pregnant woman to terminate the pregnancy in terms of Section 3 of the Act. In
view of the above discussion, as per the provision of Section 3 admittedly the petitioner is not entitled to termination of pregnancy.
For the reasons recorded above, the Writ Petition is allowed. The petitioner is permitted to undergo medical termination of pregnancy at a medical
facility of her choice. The petitioner undertakes to report to the approved centre for carrying out the procedure of medical termination of pregnancy
within two days from today.The petitioner will bear the med-ical expenses of the procedure of medical termination of pregnancy at a medical facility
of her choice.
Learned counsel for the petitioner submits that the petitioner has understood about the risk factors involved and it would be open for the petitioner to
undergo the procedure of medical termination of pregnancy at her own risk and consequences. It is further made clear that the Doc-tors who have put
their opinions on record shall have the immunity in the event of the occurrence of any litigation arising out of the instant Peti-tion.
For the sake of repetition, it is directed that the Doctors who will be part of the process shall have immunity in the event of the occurrence of any
litigation arising out of the order passed by this Court. It is need-less to mention that Doctors having experience in the field shall carry out the
termination of pregnancy.
With the aforesaid, the writ petition stands allowed.