In Samira Kohli v. Dr.

Prabha Manchanda,29 a 44-year-old patient complaining of menstrual bleeding for 9

days, underwent an ultrasound test and was advised laparoscopy test under general anesthesia for making an
affirmative diagnosis. The patient, while under general anesthesia, was subjected to a laparoscopic
examination and simultaneously with the consent of the mother waiting outside the operation theater,
abdominal hysterectomy (removal of uterus) and bilateral salpingo-oophorectomy (removal of ovaries and
fallopian tubes) were conducted. It was held by the Supreme Court that consent taken for diagnostic
procedure/surgery is not valid for performing therapeutic surgery either conservative or radical except in life-
threatening or emergent situations. It was also held that where the consent by the patient is for a particular
operative surgery; it cannot be treated as consent for an unauthorized additional procedure involving removal
of an organ on the ground that such removal is beneficial to the patient or is likely to prevent some danger
developing in future, if there is no imminent danger to the life or health of the patient. Supreme Court in the
process of arriving at its judicial opinion examined the concept of “real consent” in the UK and “informed
consent” in the US and finding the US standards to be too high and unsuitable for Indian conditions expressly
rejected the same. It was further held that a doctor must secure the consent of the patient, and such consent
should be “real and valid,” “adequate information” is to be furnished to the patient to enable him or her to make
a balanced judgment, remote possibilities need not be disclosed, and the nature and extent of information to be
furnished will be such as is considered “normal and proper by a body of medical men skilled and experienced
in the particular field.”

Proxy Consent

If an individual is personally unable to consent to a medical intervention on account of their age

or lack of intellectual maturity, the proxy consent of a legal representative is required. In this

context the legal representative is bound by the well-being of the person on behalf of whom

consent is given. This is generally ensured in the case of medical interventions for diagnostic,

therapeutic or preventive purposes. It is open to question, however, whether participation in a

medical experiment is in the interests of the test subject's well-being. This is particularly doubtful

if the experiment does not promise any direct medical benefit for the test subject, i.e. it will

benefit others or the group of patients to which the subject belongs. In this situation the

question arises as to whether the proxy representative is even entitled to give proxy consent.

What Is the Nuremberg Code?

When World War II ended in 1945, the victorious Allied powers enacted the
International Military Tribunal on November 19th, 1945. As part of the Tribunal, a
series of trials were held against major war criminals and Nazi sympathizers holding
leadership positions in political, military, and economic areas. The first trial
conducted under the Nuremberg Military Tribunals in 1947 became known as The
Doctors’ Trial, in which 23 physicians from the German Nazi Party were tried for
crimes against humanity for the atrocious experiments they carried out on unwilling
prisoners of war. Many of the grotesque medical experiments took place at the
Auschwitz concentration camp, where Jewish prisoners were tattooed with
 dehumanizing numbers onto their arms; numbers that would later be used to identify
their bodies after death.
The Doctors’ Trial is officially titled “The United States of America v. Karl Brandt, et
al.,” and it was conducted at the Palace of Justice in Nuremberg, Bavaria, Germany.
The trial was conducted here because this was one of the few largely undamaged
buildings that remained intact from extensive Allied bombing during the war. It is
also said to have been symbolically chosen because it was the ceremonial birthplace
of the Nazi Party. Of the 23 defendants, 16 were found guilty, of which seven
received death sentences and nine received prison sentences ranging from 10 years to
life imprisonment. The other 7 defendants were acquitted.
The verdict also resulted in the creation of the Nuremberg Code, a set of ten ethical
principles for human experimentation.

What Are The Nuremberg

Code's Ethical Guidelines For
Research?
The Nuremberg Code aimed to protect human subjects from enduring the kind of
cruelty and exploitation the prisoners endured at concentration camps. The 10
elements of the code are:

1. Voluntary consent is essential

2. The results of any experiment must be for the greater good of society
3. Human experiments should be based on previous animal experimentation
4. Experiments should be conducted by avoiding physical/mental suffering and injury
5. No experiments should be conducted if it is believed to cause death/disability
6. The risks should never exceed the benefits
7. Adequate facilities should be used to protect subjects
8. Experiments should be conducted only by qualified scientists
9. Subjects should be able to end their participation at any time
10. The scientist in charge must be prepared to terminate the experiment when injury,
disability, or death is likely to occur
Bolitho v City & Hackney Health
Authority [1997]
Facts

 A doctor was called to attend a 2 year old child with breathing

difficulties
 The doctor did not attend and the child died
 The process of intubation may have saved the child’s life

Issue

 Could the doctor be held liable for not attending?

Decision

 No

Reasoning

 The claimant could not prove that the doctor would have intubated,
experts had differing opinions as intubation carries many risks and
alternative courses of action could have been taken

The Bolam test is a test that can be carried out to ascertain whether a doctor or other
medical professional has breached their duty of care to a patient.
All medical professionals have a duty of care towards patients in so much as they must
do what they can to keep them safe from harm. If a doctor, nurse, dentist, radiographer
or any other medical professional fails in their duty to provide a reasonable standard of
care towards a patient then it can lead to a medical negligence compensation claim.
The standard test to measure whether there has been a breach in their duty of care is
known as the Bolam test, which was introduced following the landmark clinical
negligence claim Bolam v Friern Hospital Management Committee (1957)…
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Bolam v Friern Hospital Management

Committee
This case in particular provides us with what has become the accepted rule for
assessing what the the appropriate standard of care should have been in cases of
medical negligence: the Bolam test. The test basically expects that standards of care
have been followed in accordance with a responsible body of opinion – i.e. the medical
professional must demonstrate that they acted in a way that a responsible body of
medical professionals in the same field would regard as acceptable or reasonable.
Mr Bolam was a patient at a mental health hospital managed by the Friern Hospital
Management Committee and had agreed to have electro-convulsive therapy as part of
his treatment. The medical professionals carrying out the therapy did not give Mr Bolam
any muscle relaxant and his body was not restrained in any way. During the procedure
Mr Bolam violently convulsed and flailed about violently and dangerously, injuring
himself in several different places before the procedure was stopped – including a
fracture in his hip. Mr Bolam subsequently made a medical negligence compensation
claim against Friern Hospital Management Committee, arguing that they were negligent
in their treatment of him for failing to administer muscle relaxants, not restraining him
and not providing full warnings about the risks involved with electro-convulsive therapy.
Mr Bolam’s compensation claim ultimately failed because, at the time, it was not
generally the accepted practice to give patients muscle relaxants and some doctors
thought that providing a muscle relaxant and/or restraining the patient might actually
increase the risk of injury. Also, a standard practice at the time was to not warn patients
of the risks of electro-convulsive therapy unless they asked. Therefore it was found that
the medical team treating Mr Bolam had acted in an acceptable manner and followed
the generally accepted medical practices, and were subsequently found not be
negligent in any way.

When is the Bolam test used?

In order to satisfy the Bolam test a medical professional must be able to demonstrate
that they acted in a manner in which a responsible body of medical professionals who
work in the same field would deem to be acceptable. The Bolam test is basically a peer
review system for medical professionals which is used to assess whether they were
negligent in any way when administering treatment and care to a patient.
Due to the complex nature of modern medicine, it is possible that some doctors would
behave differently to others depending on the given circumstances. The Bolam test isn’t
necessarily concerned just with whether the medical professional delivered the same
treatment that other doctors would have done, the key aspect is that a group of other
medical professionals think that they acted in an acceptable and reasonable manner
towards the patient.

Whitehouse v Jordan [1980]

Facts

 The defendant, a senior medical professional, used forceps to assist

with the difficult delivery of a newborn child
 Because of this use of forceps, the child suffered severe brain
damage

Issue

 Was the professional negligent

Decision

 No negligence

Reasoning

 While it was an incorrect decision to use forceps, the child’s claim

failed as the decision would have been the same in the case of the
reasonable professional in such circumstances

Some interesting cases – Consumer protection

Tarun Kumar Pramanik vs. Dr. Kunal Chakraborty & Ors, 1995(2) CPR 545(WE SCDRC) The complainant
alleged that during operation for left inguinal hernia his left testis was removed negligently and without
consent. On account of this suffered and has become handicapped. The State Commission on the basis
of evidence placed on record, and opinion of expert witness held that the removal of testis was done of
expert witness held that the removal of testis was done to avoid gangrenous infection, operation was
done with reasonable care and skill and had not resulted in any handicap. Complainant was held to be
vexatious and complainant liable to pay cost of 1st opposite party

C. Sivakumar vs. Dr. Jalin Arthur & Anr, 1998 (3) CPR 436(TN SCORC) The complainant, a 23 years old boy
approached Dr. John for blockage in passage or urine (phimotic penis) who took him another clinic for
operation. After the operation there was overbleeding from the penis and ultimately he had to be
admitted to Jipmer Hospital. The hospital authorities reported the matter to the police. Here he came to
know that his penis had been cut off (amputated) and only a small stump had been left, and he was
passing urine only through an artificial hole made at Jipmer Hospital. He, in the process, had become
permanently impotent. Compensation of Rs.8lakhs was awarded to be paid by the first opposite party.

TMT. Chandra vs. Mahesh & others, 2000 (1) CPJ. 361:2000(2) CPR: 2001 CCJ 1363(TN SCDRC) The
complainant’s husband had undergone two surgeries for lump on body after proper clinical
examination. After the first surgery the lump was diagnosed as lymphoma but during the course of
treatment after surgery it was suspected to be neurofibroma and excision biopsy was done and the
biopsy report revealed to be cancerous.He was adviced radiotherapy and chemotherapy.She argued
that the doctors were negligent and the surgeries were done in hurry. Subsequently the patient
expired.She consulted doctors of the cancer institute Adyar, Tamil Nadu and CMC,Vellore who opined
that the patient expired due to the negligent behaviour of the operating doctors,but no document
certifying the above claim was issued.Hence the complaint did not receive any compensation.

P. Sudhakar Vs. Gowri Gopal Hospital, 2004 (1) CPJ 329 (AP SCDRC) Surgery was done for acute
appendicitis, during the post operative period the patient expired after administration of wrong drug”
Fancuran Bromide , 2ml ,mistaking it for analgesic.As compensation Rs. 2 lac was awarded along with
Rs.10,000 as costs for OP-hospital,doctor and nurse were held jointly liable.

#GenderJustCourts - Right to Termination of Pregnancy: Meera Santosh

Pal vs. Union of India
November 29, 2017
|

Saumya Maheshwari

This post is part of a series that seeks to explore judgements relating to gender
justice and equality in the Indian Courts. As a common law system, we know that it
is the combination of legislation passed in parliament and interpretations made by
judges that make up the laws that affect women and girls across India. We hope this
series provides an insight into how past cases might impact future ones.

The Meera Santosh Pal case, 2017, is a landmark judgement towards furthering the
reproductive and sexual health rights of women.

Background of the case

In this case, the Petitioner, a twenty-two year old married woman approached the
court for directions to the government to allow her to abort her 24 week old fetus.
Having discovered that the fetus was suffering from Anencephaly, a defect that
leaves fetal skull bones unformed, she apprehended danger to her mental health if
the pregnancy were carried to term. The Petitioner was constrained to approach the
court, as physical disability of the fetus is a ground for termination of pregnancy only
until the 20th week of gestation. After that, the only ground for obtaining an abortion
under the Medical Termination of Pregnancy Act, 1971, is threat to the life of the
pregnant woman.

Highlights of the case

The court allowed the petition on the ground that giving birth to an unviable fetus
may adversely affect the petitioner’s mental health, thus posing a threat to her life.
While stating that the woman’s right to terminate her pregnancy should feature as
the prime consideration in its decision, the court made repeated references to the
un-viability of the fetus and the futility of forcing the petitioner to carry the pregnancy
to term.

Towards Gender Justice? Definitely!

The Court specifically stated that it would not decide the matter with reference to the
viability of the fetus, but only with regard to the right of the Petitioner to preserve her
life in view of the foreseeable danger to it. In doing so, the Court recognized that the
woman’s right to termination of pregnancy, although not absolute, is of greater
significance than any rights that may vest in the fetus after twenty weeks of
gestation. The Court also adopted empowering language, by stating that the
exercise of the Petitioner’s rights was within the limits of reproductive autonomy.
This decision is therefore a step forward towards greater recognition of women’s
reproductive rights.

Implications of the case

The Medical Termination of Pregnancy Act states that a pregnant woman can
terminate her pregnancy up to twenty weeks of gestation, for a variety of reasons,
including harm to her physical and mental health. However, under Sec. 5 of the Act,
the grounds for termination of pregnancy are greatly limited. This section states that
after twenty weeks, she can terminate the pregnancy only if it poses a risk to her life.
While the general understanding is that threat to life should be understood as threat
to physical health of the woman, this decision has phenomenally expanded the
scope of Sec. 5 to include threat to mental health of the woman.
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Section 3 in The Medical Termination of Pregnancy Act, 1971
Section 5 in The Medical Termination of Pregnancy Act, 1971
Section 4 in The Medical Termination of Pregnancy Act, 1971
The Indian Penal Code
The Medical Termination of Pregnancy Act, 1971
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Aarti Balu Pawar vs Union Of India Through The ... on 10 September, 2018

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it.
Bombay High Court
X vs The Union Of India And Others on 12 December, 2017
Bench: R.M. Borde
(Judgment) (1)

W.P. No. 1

4173

of 2017

IN THE HIGH COURT OF JUDICATURE AT

BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
 Writ Petition No. 14173 of
2017

District : Nandurbar

"X"
(Since minor through her mother)
.. Petitioner.

versus

The Union of India & others.

.. Respondents.

...........

Mrs. Sabahat T. Kazi, Advocate, for the

petitioner.
Mr. Bhushan Kulkarni, Standing Counsel, for
respondent No.1.
Mr. A. B. Girase, Government Pleader, for
respondents No.2 to 4.

...........

CORAM : R.M.
BORDE &
SMT.
VIBHA KANKANWADI, JJ.

DATE : 12th DECEMBER, 2017.

JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :

01. Rule. Rule made returnable forthwith.

02. Heard finally with the consent of learned counsels for the respective
parties.

03. The guardian of an unfortunate deaf-dumb-mentally challenged victim,

who has already suffered physical abuse and mental torture has approached
this Court seeking direction in the nature of writ of mandamus directing
respondent no. 3 to carry out termination of unwanted pregnancy
which(Judgment) (2) of 2017 is result of physical abuse thrust against the
victim.

04. The guardian-mother of the victim (petitioner) contends that her

daughter is the victim in Crime No. 120/17 registered with Dhadgaon
Police Station, Dhadgaon, District Nandurbar, which has been registered
on 07.11.2017. After the medical examination of the victim was conducted
on 02.11.2017 in a hospital at Akkalkuwa, it is found that she is pregnant
and length of the pregnancy is 18 to 19 weeks. Thereafter, she was taken to
Nandurbar Hospital on 05.11.2017 for further treatment. It was found that
some unknown person had taken disadvantage of the physical situation of
the victim, had committed rape on her. The victim is deaf-dumb and
mentally retarded. Brother of the victim had lodged report against
unknown person for the said crime. He had also filed application on
12.11.2017 for termination of pregnancy to respondent No. 4. However,
respondent No. 4 told that since the victim is deaf-dumb-mentally
challenged, he will not be able to perform the operation. In the mean time,
victim was referred to Medical Superintendent, S. B. H. G. M. C. &
Hospital, Dhule for her mental assessment. It was diagnosed with "Sever
Mental Retardation". An application was then preferred before Sessions
Judge, Shahada for permission for termination of pregnancy. Final report
was given on 28.11.2017. The said application was rejected on 04.12.2017.
Hence, this petition.

05. Taking into consideration the contentions raised in the petition, by

order dated 07.12.2017, we had directed and referred the victim for
medical examination before the Board constituted at Government Medical
College & Hospital, Aurangabad. The medical examination was directed in
order to ascertain extact psychological and physical condition of the
victim.

06. Petitioner was medically examined by five members Expert Committee

constituting of --

1) Dr. Shrinivas Gadappa, (Chairman), HOD Dept. of OBGY, (Judgment)

(3) of 2017
2) Dr. S. K. Jain (Member), Prof. & HOD ENT.
3) Dr. Suhas Jewalikar (Member) HOD, Anaesthesia.
4) Dr. Varsha Rote, (Member) Prof & HOD, Radiology.
5) Dr. P. S. Patil, (Member) Prof & HOD Paediatrics.
6) Dr. Ghuge (Member) HOD, Psychiatry.

07. The Committee has recorded following findings in the report tendered
to this Court :

1. From general examination she has no active medical complaints.

2. On Obestetrics examination her vital parameters are within normal
limits With approximately 22 weeks of pregnancy.
3. Ultrasonographic examination suggestive of single live intrauterine
foetus of approximate 22 weeks, Nuchal thickness 7mm, Unilateral pelvi
ureteric Junction obstruction.
4. ENT examination, survivor is congenitally deaf and mute.
5. On psychiatric examination, survivor clinically seems to be of sever
intellectual disability.
6. On Paediatrics examination, survivor has gross development delay with
Down Syndrome.

08. The conclusions of the Committee are as follows :

1. Current pregnancy, on clinical and ultrasonographical examination is
around 22 weeks by gestation. With Nuchal thickness 7mm, unilateral
pelvi ureteric junction obstruction
2. Survivor clinically seems to be of severe intellectual disability.
3. Risk of termination of pregnancy is within normal acceptable limits.
(Judgment) (4)

of 2017

09. The Medical Termination of Pregnancy Act, 1971 provides for

termination of certain pregnancy by the registered Medical
Practitioner. Sections 3, 4 and 5 of the Act are relevant which read thus :
3. When pregnancies may be terminated by registered medical
practitioners -
(1) Notwithstanding anything contained in the Indian Penal Code (45 of
1860), a registered medical practitioner shall not be guilty of any offence
under that Code or under any other law for the time being in force, if any
pregnancy is terminated by him in accordance with the provisions of this
Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be
terminated by a registered medical practitioner,
(a) where the length of the pregnancy does not exceed twelve weeks, if
such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not
exceed twenty weeks, if not less than two registered medical practitioners
are, of opinion, formed in good faith, that -
(i) the continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer
from such physical or mental abnormalities as to be seriously handicapped.
Explanation I - Where any pregnancy is alleged by the pregnant woman to
have been caused by rape, the anguish caused by such pregnancy shall be
presumed to constitute a grave injury to the mental health of the pregnancy
woman.
Explanation II - Where any pregnancy occurs as a result of failure of any
device or method used by any married woman or her husband for the
purpose of limiting the number of children, the anguish caused by such
unwanted pregnancy may be presumed to constitute a grave injury to the
mental health of the pregnancy woman.
(Judgment) (5)

of 2017

(3) in determining whether the continuance of a pregnancy would involve

such risk of injury to the health as is mentioned in sub-section (2), account
may be taken of the pregnant woman's actual or reasonable foreseeable
environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen
years, or, who, having attained the age of eighteen years, is a [mentally ill
person], shall be terminated except with the consent in writing of her
guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be
terminated except with the consent of the pregnant woman.
4. Place where pregnancy may be terminated - No termination of
pregnancy shall be made in accordance with this Act at any place other
than -
(a) a hospital established or maintained by Government , or
(b) a place for the time being approved for the purpose of this Act by
Government or a District Level Committee constituted by that Government
with the Chief Medical Officer or District Health Officer as a Chairperson
of the said Committee.
Provided that the District Level Committee shall consist of not less than
three and not more than five members including the Chairperson, as the
Government may specify from time to time.
5. Sections 3 and 4 when not to apply -
(1) The provisions of section 4, and so much of of the provisions of sub-
section (2) of section 3 as relate to the length of the pregnancy and the
opinion of not less than two registered medical practitioners, shall not
apply to the termination of a pregnancy by a registered medical practitioner
in a case where he is of opinion, formed in good faith, that the termination
of such pregnancy is immediately necessary to save the life of the pregnant
woman.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of
1860), the termination of pregnancy by person who (Judgment) (6) of 2017
is not a registered medical practitioner shall be an offence punishable with
rigorous imprisonment for a term which shall not be less than two years
but which may extend to seven years under that Code, that Code shall, to
this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that mentioned
in section 4, shall be punishable with rigorous imprisonment for a term
which shall not be less than two years but which may extend to seven
years.
Explanation 1 - For the purposes of this section, the expression "owner" in
relation to a place means any person who is the administrative head or
otherwise responsible for the working or maintenance of a hospital or
place, by whatever name called, where the pregnancy may be terminated
under this Act.
Explanation 2 - For the purposes of this section,so much of the provisions
of clause (d) of section 2 relate to the possession, by registered medical
practitioner, of experience or training in gynaecology and obstetrics shall
not apply.
10. Although section 3 of the Act provides the limit of 12 weeks for
medically terminating pregnancy by a medical practitioner and, where the
length of pregnancy exceeds 12 weeks but does not exceed 20 weeks and
if, not less than two medical practitioners are of opinion, formed in good
faith, the continuance of pregnancy would involve a risk to the life of the
pregnant woman or grave injury to her physical or mental health or that
there is a substantial risk that if the child were born, it would suffer from
such physical or mental abnormalities as to be seriously handicapped, it
would be permissible to terminate the pregnancy. It must be noted
that section 5 of the Act is not controlled by the limitation in respect of
duration of pregnancy contained in sections 3 and 4 of the Act. If in the
opinion of medical experts, arrived at in good faith, the termination of
pregnancy is immediately necessary to save the life of the pregnant
woman, such a pregnancy can be terminated. It also must be noted that
Explanation 1 to section 3 records that where the pregnancy is alleged by
the pregnant woman to have been caused by rape, the anguish caused by
such pregnancy can be presumed to constitute a grave injury to the mental
health of the pregnant woman. Sub-section (Judgment) (7) of 2017
(1)(b)(i) of section 3 refers to the risk involved to the pregnant woman
which includes even injury in respect of mental health. These are the
situations in respect of termination of pregnancy of a woman who is not
suffering from any physical abnormalities. There shall not be reason to
doubt that since pregnancy in the instant matter is as a result of offence of
rape, it causes a huge mental trauma and such inference is in consonance
with explanation 1 to section 3(1) of the Act of 1971.

11. Honourable Supreme Court in the case of Suchita Srivastava Vs.

Chandigarh Administration reported in 2009(9) SCC 1, has observed that
there is no doubt that a woman's right to make reproductive choices is also
a dimension of "personal liberty" as understood under Article 21 of the
Constitution of India. It is important to recognise that reproductive choice
can be exercised to procreate as well as to abstain from procreating. In the
instant matter, when the victim was before the Medical Board, she had
communicated (It appears that while indicating the psychiatric
examination), that she has no other option than to commit suicide if she is
forced to continue pregnancy. It must be noted that the pregnancy carried
by petitioner is as a result of physical abuse thrust against her and that she
has a choice whether to continue with such pregnancy which is result of
offence against her person. The freedom of making choice by a woman
which is integral part of personal liberty cannot be taken away. It shall also
be taken into consideration that besides physical injury, the legislature has
widened the scope of term injury by including injury to mental health of a
pregnant woman. If continuation of pregnancy is harmful to mental health
of a pregnant woman, then it shall be construed as a good legal ground for
permitting her to terminate pregnancy and, since in the instant matter,
pregnancy is alleged to be as a result of physical abuse, in view of section
5 of the Act of 1971, the choice of the victim of rape of terminating
unwanted pregnancy needs to be respected. The crucial consideration is
that a woman's right to privacy, dignity and bodily integrity should be
respected.

(Judgment) (8)

of 2017

12. In the matter of Appellant "X" Vs. Union of India and others reported
in AIR 2016 SC 3525, the Honourable Apex Court considering the
provisions of section 5 of the Act of 1971, permitted termination of
pregnancy of duration of 23 to 24 weeks. It is observed in the judgment
that section 3leaves no room for doubt that it is not permissible to
terminate pregnancy after 20 weeks however, section 5 of the Act lays
down exception to section 3. It is further observed that termination of
pregnancy which is necessary to save life of a pregnant woman is
permissible. The Honourable Apex Court in the matter of Appellant X Vs.
union of India and others reported in AIR 2017 SC 1055, granted
permission for termination of pregnancy of duration of 24 weeks since it
was noticed that the foetus could not survive.
13. The crucial question here is whether permission can be granted to
terminate the pregnancy of 22 weeks in this case. The victim in this case is
deaf, dumb and mentally retarded; therefore, she is unable to make a
choice on her own whether to terminate the pregnancy or to continue with
it. She has no such intellectual capacity, therefore, her guardian should be
given that right to make choice. This case is also required to be considered
from the physical point of view of the victim. Victim is deaf, dumb and
mentally retarded. She is unable to take any decision. In fact, she is not
even aware that she has been raped and she is pregnant. It has been stated
by her guardian and brother that she is not even able to take care of herself.
Question therefore arises under such circumstance as to how she would
take care of child to be borne? It has been stated in the medical certificate
that " On Paediatrics examination, survivor has gross development delay
with Down Syndrome". If we consider "Down Syndrome", it means "is a
genetic disorder caused by the presence of all or part of a third copy of
chromorome". It is typically associated with physical growth delays,
characteristic facial features and mild to moderate intellectual disability.
The medical literature would show that there is no cure to the "down
syndrome". No doubt, a person with down syndrome may lead a normal
life, but in the present case, when the victim is unable to take care of
herself, there is every possibility (Judgment) (9) of 2017 that she will not
be able to take care of the foetus. Though the certificate states that the risk
of termination of pregnancy is within normal acceptable limits; it would be
hazardous to ask her to bear the pregnancy. It is not only dangerous to her,
but dangerous to the unborn child also. Apart from danger to the life of the
petitioner, this Court has to take note of the psychological trauma the
petitioner is undergoing as a result of carrying unwanted pregnancy. The
pregnancy of the petitioner is definitely unwanted for her and it is violative
of her personal liberty. Since she is unable to take decision due to
intellectual disability, her guardian is taking the said decision, which is in
the best interest of the victim and her survival. In the circumstances, we do
not notice any impediment in permitting petitioner to terminate unwanted
pregnancy.

14. Learned counsel for petitioner, states on instructions, that the petitioner
would like to complete the procedure of termination of pregnancy of the
victim at Government Medical College & Hospital, Aurangabad. The Dean
of Government Medical College & Hospital, Aurangabad is thus directed
to forthwith complete the procedure of termination of pregnancy of victim
under supervision of the team of medical experts. Two members of the
team shall be experts in Obstetrics and Gynecology.

15. Since according to petitioner, the pregnancy carried by the victim is as

a result of offence of rape, complaint has already been lodged and the
matter is under investigation, the Dean, Government Medical College &
Hospital, Aurangabad is directed to preserve tissue sample and blood
sample of the foetus for carrying out necessary medical tests including
DNA, finger printing/mapping. The Investigating Officer conducting
investigation in the matter shall ensure that the samples of tissues and
blood etc. shall be forwarded to the Regional Forensic Laboratory,
Aurangabad, for DNA, Finger printing/mapping and for carrying necessary
tests and the samples and report shall be preserved for the purpose of trial
of the offence.

(Judgment) (10)

of 2017

16. Rule is accordingly made absolute. No costs.

( Smt. Vibha Kankanwadi )

( R.M. Borde )
JUDGE
JUDGE

...........
vjg / WP14173.17

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Constitutes Medical Board To Examine Woman Pleading Abortion Of 25-Week Old
Fetus [Read Order] BY: APOORVA MANDHANI23 Jun 2017 7:11 PM 7 SHARES
FacebookTwitterWhatsAppLinkedInMore The Supreme Court on Friday constituted a
Medical Board to examine a 33-year old pregnant lady from Kolkata, Ms.
Sarmishtha Chakraborty, who has approached the Court with a plea to allow
abortion of her 25-week old fetus on the ground that it suffers from abnormalities.
The examination will be conducted at the Institute of Post Graduate Medical
Education & Research (SSKM Hospital), Kolkata. A Vacation Bench of the Court
comprising Justice D.Y. Chandrachud and Justice S.K. Kaul has directed the Medical
Board to submit its evaluation report on 29 June in a sealed cover. A copy has also
been directed to be furnished to the Standing Counsel for the state of West Bengal.
Also Read - Apex Courts Of Australia And South Korea Deliver Landmark Rulings In
Favour Of Abortion Rights [Read Judgments] Ms. Chakraborty has, in her Petition,
claimed that she had suffered immense mental and physical anguish as a result of
the unreasonable 20-week restriction on abortion under Sections 2(b) of the
Medical Termination of Pregnancy (MTP) Act. She has now challenged the
constitutional validity of Section 3(2)(b) of the MTP Act, 1971, and the scope of
Section 5 of the Act, on the ground of its narrow and literal interpretation,
particularly limited to the phrase ‘the termination of such pregnancy is immediately
necessary to save the life of the pregnant woman’. Also Read - Right To Life Of 26
Week Foetus Outweighs Mother's Mental Trauma, Calcutta HC Denies Abortion The
Petition contends that these provisions would have been reasonable in 1971, when
the Act was enacted, but have ceased to be reasonable now in view of stride in
technology. It is perfectly safe for a woman to abort even up to 26th week and
thereafter, it argues. Read the Order here. Topics : Abortion | Justice D Y.
Chandrachud | Justice S K Kaul | Medical Board | Sections 2(b) of the Medical
Termination of Pregnancy (MTP) Act | Supreme Court of India RELATED Apex
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