Picture used for representational purpose only

KOLKATA: The Calcutta High Court on Monday overturned a single-judge bench’s order to allow a 29-week pregnant woman to abort her foetus, which has been diagnosed with multiple congenital complications, including Down syndrome .

Monday’s order came almost a month after the 39-year-old Belgachia resident moved the HC citing financial constraints in raising such a child. She had also mentioned in her petition that trying to raise the child, her second, would be mentally and physically traumatic for her. The HC allowed the woman to undergo abortion at any registered private facility after the state pleaded helplessness in conducting the procedure at a government facility.

The division bench of acting Chief Justice Biswanath Somadder and Justice Arindam Mukherjee turned down the January 29 order of a single-judge bench, which had refused the woman’s plea. The earlier plea was rejected based on an SSKM medical board report, which said her life would not “be endangered if she is allowed to continue with her pregnancy”.

The earlier order had observed that with pregnancy in last trimester, the organs of the foetus have developed. The medical report, it said, suggested that 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”.

In this backdrop, the HC had concluded that at that advanced stage, the right of the foetus to live outweighs the mental trauma that may be suffered by the mother in giving birth to the child. The mother then moved the division bench.

The division bench factored in two key aspects while upholding the woman’s plea to abort her 29-week-old foetus. In the Right to Life under Article 21, the division bench said, the term “life” means more than mere animal existence. It said the medical report also points out that the child, if born, will have an uncertain life.

The medical report had tested positive for Down Syndrome, malformations in nasal bone, stomach, ventricle and umbilical chord. “There are chances of the deformities improving to a certain extent during the full gestation period, and later, with neo-natal care and surgeries. However, it is not possible to predict with any accuracy the consequences of these medical procedures,” the report had said.

The HC division bench also observed that under Section 3(2) of The Medical Termination of Pregnancy Act, 1971, the mother’s and the child’s physical and mental health are a laid down criteria. The issue, it said, “was the standard of life and not life alone”. The HC observed that it would have been better had the state stepped forward and helped the couple with financial and medical help.

Mumbai-based gynaecologist Nikhil Datar said there was no medical reason to disallow the abortion since there was little difference in the risk involved between termination at 19 weeks and 29 weeks. “There is no additional risk involved. Rather, by allowing such children to be born, parents are put through a great deal of trauma and stress which is unfair,” Datar said.

Ranjit Chakrabarty, consultant gynaecologist, said, “Late abortions should be allowed in cases like these. Foetal abnormalities are often detected beyond 20 weeks.” He added that even though an abortion can be done by inducing labour pain, it could be risky if the woman has undergone a C-section delivery previously. “In that case, there could be a risk of the uterine scars getting ruptured. So, it would be safer to take the foetus out by a C-section delivery and then withdraw life-support to terminate it,” Chakrabarty said.

