Bombay HC refuses abortion of 26-week foetus

The Bombay High Court today refused permission to abort a 26-week foetus with a serious heart defect after rejecting the mother's plea to terminate the pregnancy in a case torn between trauma and ethical issues.

Dismissing an application by Niketa Mehta, the court observed that medical experts did not express any "categorical opinion that if the child is born it would suffer from serious handicaps."

Considering the defects as they are now, experts are not sure whether cardiac surgery will be required at or after birth, court said.

The court noted that even if the couple had approached before 20 weeks it would not have been possible to allow abortion, as the medical opinion was contrary.

Mehta also sought an amendment to the Medical Termination of Pregnancy Act so that pregnancy can be terminated even after 20 weeks if doctors believe that the child, if born, will have serious abnormalities, so as to render it handicapped. As per the 37-year-old abortion control laws, a pregnancy can be terminated after 20 weeks only if there was a fatal risk to the mother and not the foetus.

But a  division bench of Justice R M S Khandeparkar and Amjad Sayed observed that they could not alter the provision.

"It is the job of the legislature to help you alter the provision. We cannot legislate the provision," Justice Khandeparkar observed.

Additional Solicitor General Rajinder Raghuvansh said the court felt that existing laws did not permit Niketa to abort the child. Niketa's lawyer Amit Kharkanis said the Mehta family was "disappointed" but no decision has been taken to approach the Supreme Court.

Niketa and Haresh Mehta along with their doctor Nikhil Datar had moved court for medical termination of pregnancy after physicians had diagnosed the unborn child with a congenital disorder. Niketa had found out in the 24th week of her pregnancy that the foetus had a congenital heart block.

The court took into account the opinion of a three-member panel of doctors of JJ Hospital which contradicted its earlier finding when it said there "were least chances" that the child would be born with a handicap. The panel earlier said there were "fair chances" the child would be born handicapped or incapacitated.

Niketa, who is in the 26th week of pregnancy, had moved the court last week, seeking permission to abort her first child, as her doctor found out in the 24th week that the foetus has a congenital heart block. The court then constituted a committee of doctors. The court had given the petitioners-Niketa Mehta, her husband Harsh Mehta and their doctor Nikhil Datar the liberty to seek an independent opinion. But the doctors consulted by Mehtas too were not sure if a cardiac surgery would be required after the birth, or there was any "substantive" risk that the child will be seriously handicapped all its life.

The Mehtas had also sought amendment to the MTP Act, which does not allow abortion on the ground of feared abnormality in the child after 20th week of pregnancy. But the court pointed out that even if Mehtas were to seek permission for abortion before 20 weeks, medical opinions did not support the need for abortion in Niketa's case.

The petitioners had contended they wanted to abort the child since it would need a pace maker right from the time of birth and the quality of its life would be poor. The couple, who hail from a middle class background, told the court the child would need a pace maker, which costs about Rs one lakh and which has a limited life. Changing the pace maker every five years was not economically viable for the family, they said.