SC dismisses plea to abort 26-week-old foetus with Down Syndrome

NEW DELHI: “We have a life in our hands”, the Supreme Court on Tuesday said as it dismissed a plea by a woman who wanted to abort her pregnancy of 26 weeks as the foetus suffered from 'down syndrome'.

The apex court said it understood the "anxiety" of the 37-yearold woman who had sought its nod to abort the foetus on the ground that it suffered from 'down syndrome', but as per the report of the medical board it cannot allow her to terminate the pregnancy.

Down syndrome is a congenital disorder which causes intellectual impairment and physical abnormalities.

Referring to the report of the seven-member medical board, the court said as per its advise, "there is no physical risk to the mother of continuation or termination of pregnancy" and "if the baby is born with Trisomy 21 (down syndrome), it is likely to have mental and physical challenges".

"In any case, it is not possible to discern the danger to the life of petitioner no.1 (woman) in case she is not allowed to terminate her preg- nancy. In the facts and circumstances of the case, it is not possible for us to grant permission to petitioner no.1 to terminate the life of the foetus," a bench of Justices S A Bobde and L Nageswara Rao said.

The apex court said the report "clearly does not and possibly cannot observe that this particular foetus will have severe mental and physical challenges. It states that the baby is likely to have mental and physical challenges".

The bench noted that in the medical report, "there is no observation made by the medical board that every baby with down syndrome has low intelligence, but it was observed that 'intelligence among people with down syndrome is variable and a large proportion may have an intelligence quotient of less than 50 (severe mental retardation)".

The order came on the plea filed by the woman who had approached the apex court seeking a direction to allow her to undergo medical termination of her pregnancy.

The law prohibits termination of pregnancy after 20 weeks even if there is a fatal risk to the mother and the foetus.

"We are constrained to pass this order being conscious of the fact that any permission at this stage would be irreversible," the bench said.

"It is not in dispute that the foetus of petitioner no.1 has been diagnosed with Trisomy 21, more commonly known as down syndrome, a condition that causes severe physical and mental retardation to the foetus," it said.

The apex court said that in such cases, two important considerations –danger to the life of the mother and danger to the life of the foetus –are involved.

During the hearing when senior advocate Colin Gonsalves, who was representing the woman, insisted that the lady should be allowed to terminate the foetus, the bench said, “everybody knows that children with down syndrome are undoubtedly less intelligent, but they are fine people.”

When the counsel referred to the report and quoted the doctors as having said that there was a possibility of severe mental retardation, the bench observed, “undoubtely this syndrome affects the mind, but is the degree of retardation such (that) it warrants termination of life of foetus”.

Gonsalves said that another bench of the apex court is hearing a separate matter in which validity of the provision of Medical Termination of Pregnancy Act is under challenge.

The bench, which declined the plea of woman to undergo medical termination of pregnancy, tagged her plea with the matter pending before another bench.

When the counsel referred to the report of the medical board, the bench said, “With this report, we don't think we are going to allow the termination of pregancy”.

“We have a life in our hands. If you want us to consider the constitutional challenge to the Act, we will consider it,” the bench said, adding “we will tag your plea with the other matter”.

Solicitor General Ranjit Kumar, representing the Centre, opposed the plea and said termination of pregnancy should not be allowed in view of medical board's report.

At the fag end of hearing, Gonsalves said the trauma of the mother to nurture a child suffering from down syndrome should also be considered.

To this, the bench said, “It is a sad thing to expect such a child.”

The woman had said in her plea that this disorder could cause physical and mental retardation and the child would not be able to lead a normal and healthy life.

In a separate case, the apex court had on February 7 allowed a 22-yearold woman to terminate her 24-week pregnancy on the ground that it would endanger her life.

In another case, the apex court in January had allowed a Mumbaibased woman, who was in her 24th week of pregnancy, to terminate her pregnancy while taking into consideration the report of a hospital which had suggested that the foetus would not be able to survive without the skull.