A Surrogate Mother permitted to Terminate pregnancy @ 24 week by Hon. Bombay High Court. An unique judgment indeed

A Surrogate Mother permitted to Terminate pregnancy @ 24 week by Hon. Bombay High Court. An unique judgment indeed.

Case details :
Kiran Kailas Gavhande & anr. V/s. Union of India & ors.
W.P. No.14494/2018

Coram : Hon. Smt. Bharati H. Dangare J. (vacation Court)

Facts of the case in short :
1. The Petitioner No.1 and 2 herein executed Surrogacy agreement with the intended parents i.e. the Petitioner No.3 and 4. The Petitioner No.1 and 2 reside in a small village Varvand, Mehkar Dist. Buldhana, Maharashtra.

2. During  routine check up of the Petitioner No.1, it was found that the fetus had serious  defects in the heart and after consulting the Pediatric Cardiologist, it was decided to abort the fetus.However by that time it was already 24 weeks fetus and as per current law it is not possible to terminate pregnancy @ 24 weeks. Before discussing the further facts, lets see the current law in brief.

The Medical Termination of Pregnancy Act, 1971
As per current Law Pregnancy of a Woman (Law does not mention about Married or unmarried pregnant woman) can be terminated by a Registered Medical Practitioner are of the opinion, in good faith, that  continuance of the pregnancy would involve a risk to the life of the Pregnant woman or may cause grave injury to physical and mental health of pregnant woman or such a child to be born may suffer with serious physical and mental abnormalities. If 20 weeks pregnancy is to be terminated, then two registered Medical Practitioners' must opine in favour of MTP.

Permission of Guardian :
If the pregnant woman is  below 18 years of age or above 18 years, but is a lunatic, then consent in writing of her guardian is a must.
In all cases, consent of pregnant woman before MTP is a precondition.

3. The Petitioners therefore had to approach Hon. Bombay High Court for the urgent reliefs. Hon. Bombay High Court then constituted a committee of B.J.Medical College and Sasson General Hospital Pune, comprising of Committee comprising of the Professor and Head of department Obstetric and Gynecologists, Department of Medicine, Department of Radiodiagnosis and a Cardiovascular Surgeon.  

4. The Committee after examining the pregnant woman unequivocally opined that there are multiple cardiac abnormalities in the baby and if the baby is born it will require multiple surgeries with high morbidity and mortality. The committee has therefore opined that the  pregnancymay be terminated with the explained risk of termination of 24 weeks and that will have to be done by C-Section.

5. The Surrogate mother was also made aware by Doctors about the risks involved. The hon. Court also felt it proper to take the consent of Intended Parents. Accordingly the matter was posted in vacation Court and the intended parents were allowed to remain present in the Court and to file their Consent with Affidavits. The Intended parents also gave their consent accordingly. 

6. Accordingly by its final order dated 28/12/2018, Hon. Court permitted to Terminate the Pregnancy @ 24 weeks considering the unique case. Hon. Court accepted the expert report that baby born will be a traumatic experience for the baby as well as for the parents and directed the Surrogate mother to undergo MTP on next day i.e. on 29/12/2018 at 8.00 a.m. in Sasoon General Hospital. 

7. The matter was first heard on 16/12/2018 and it was finally decided on 28/12/2018. Considering  the urgency of the matter, it was decided in vacation. All the orders are available on official website of Hon. Bomaby High Court. Nevertheless, the judge is 24 hours public officer. 


8. This judgement yet again emphasizes the need to suitably amend MTP Act. There have been contradictory judgements in this point. It is not possible for every one in all senses to approach the Court that too higher judiciary. Kudos to the Doctors too. Role of Doctors is very crucial in MTP and especially in such cases beyond 20 weeks termination, as their opinion matters a lot.

Thanks and Regards,

Adv. Rohit Erande
Pune.

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