Nausheen Bano v. State of Karnataka & Ors.

November 20, 2019 | Devi Jagani
Case No. Writ Petition No. 50183 of 2019 Date of Filing 27/10/2019 Status Disposed Petitioners Nausheen Bano Respondents State of Karnataka, represented by its Chief Secretary; Manipal Hospital, represented by the Medical Superintendent ; Bangalore Medical College and Research Institute, represented by its Director cum Dean

The Petitioner was a 24-year-old married woman who was 30 weeks pregnant at the time of filing the petition. This petition was filed seeking permission of the High Court to terminate her pregnancy.  The Petitioner had been undergoing regular scans and there was no detection that there was anything abnormal with her pregnancy. It was only around the 28th week that the scans revealed that the fetus had multiple abnormalities including partial unbalanced Atrio-Ventricular Septal Defect (partial unbalanced AVSD) which is a congenital heart defect, duodenal atresia or blockage of the stomach. Both of these conditions would require a major surgery to be performed as soon as the baby is born. The fetus also was diagnosed with Trisomy 21 (Down Syndrome).

 

The Petitioner contended that all of these abnormalities have caused grave mental trauma to the Petitioner and further, that she does not have the monetary capacity to care for and support the child, if born. Hence, she had taken the painful decision to seek termination of her pregnancy at this belated stage. For these reasons, she is seeking permission from the Hon’ble High Court.

 

Under Section 3, the Medical Termination of Pregnancy Act, 1971 (hereinafter the MTP Act) only provides for termination of pregnancies of 20 weeks and below. However, Section 5 of the MTP Act creates an exception to Section 3 and permits termination of pregnancies to be performed after 20 weeks when a registered medical practitioner is of the opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

 

The Supreme Court has held in several cases that ‘saving the life of the mother’ under Section 5 of the MTP Act should be interpreted liberally inter alia to include situations where continuance of the pregnancy would cause grave mental injury to the mother due to serious fetal abnormalities (Meera Santosh Pal and Ors. vs. Union of India and Ors., (2017) 3 SCC 462) even if there is no immediate danger to the life of the mother. In such circumstances, the Hon’ble Supreme Court has permitted medical termination of pregnancies up to 32 weeks.

 

Courts have adopted such a purposive interpretation of Section 5 of the MTP Act over the literal interpretation in order to harmonize the statute with the constitutional rights of the mother to privacy, to exercise her reproductive choices, to personal liberty, to bodily integrity and to her dignity (see XYZ vs. Union of India and Ors., 2019 SCC OnLine Bom 560). Relying on all these grounds, the Petitioner in the instant case sought a direction from the Hon’ble High Court to terminate her pregnancy.

 

After an emergency hearing on 27.10.2019, the Hon’ble Court first directed a Medical Board constituted by the Respondent No. 3 to examine the Petitioner. The Medical Board recognized the presence of the multiple abnormalities in the fetus and noted that although AVSD and duodenal atresia can be surgically corrected, Down Syndrome is a life-long developmental disorder. The Medical Board noted the continuance of pregnancy as termination at this belated stage would pose risks to the life of the mother and there was a chance of the fetus being born alive. However, the Medical Board also stated that termination of pregnancy should be permitted if delivering such a baby with abnormalities would cause grave mental injury to the Petitioner.

 

Further, considering the belated stage of the pregnancy, the Petitioner and her husband also stated on oath, by filing an affidavit, that they would care for and support the child if it is born alive during the process of terminating the pregnancy.

 

After detailed arguments, the Hon’ble Court passed an order on 31.10.2019 permitting the Petitioner to seek termination of the pregnancy at the Respondent No. 2 hospital or any other hospital of her choice, considering the grave mental injury caused to her and her fundamental right to make reproductive choices.

Case No. Writ Petition No. 50183 of 2019 Date of Filing 27/10/2019 Status Disposed Petitioners Nausheen Bano Respondents State of Karnataka, represented by its Chief Secretary; Manipal Hospital, represented by the Medical Superintendent ; Bangalore Medical College and Research Institute, represented by its Director cum Dean