MUMBAI: The Bombay High Court on Friday allowed a 33-year-old woman, who is in her 30th week of pregnancy, to undergo an abortion as a medical test had revealed that the foetus has a developmental birth defect.
A division bench of justices A S Oka and A S Gadkari also granted the woman's request to undergo the abortion at a private clinic in Nashik.
On the high court's direction, doctors at the government-run J J Hospital here had examined her and approved the abortion at such a late stage, considering the condition of the foetus.
However, the government had opposed her request to undergo abortion at the Nashik clinic.
She should be directed to undergo abortion at a government hospital as the Medical Termination of Pregnancy (MTP) Act mandates that the procedure must be performed only at government hospitals or private hospitals recognised for this purpose by the government, it said.
In Maharashtra, private clinics and hospitals which perform MTP are required to be certified by civic bodies.
The clinic in Nashik is duly certified to perform legally approved medical termination of pregnancy.
However, the state government is yet to complete the process of registering and approving private clinics for carrying out abortions in cases where the pregnancy has exceeded 20 weeks, the government lawyer said.
Advocate Kuldeep Nikam, the woman's lawyer, said she should be allowed to undergo the procedure at the Nashik clinic as the doctors there knew her case history well.
The high court acceded to the request, saying that she should not be penalised because the state had failed to complete registration of clinics.
The petition said that the woman already has a five-year-old son diagnosed with Down's Syndrome.
She and her husband approached the high court last week seeking permission for abortion, saying that they were already caring for a specially-abled child, and forcing them to continue with the present pregnancy would cause them much physical and emotional trauma.
Giving birth to another child with special needs would impose a financial burden on them as the woman is a housewife and the husband runs a small business, the petition said.
On September 11, the woman's doctor suggested that considering her first child's condition, she should undergo a scan to check if the present foetus had abnormalities.
The scan revealed that the foetus has "Schizencephaly", a rare developmental birth defect characterised by abnormal slits or clefts in the brain.
The condition causes developmental delays.
It can also cause seizures and problems with brain-spinal cord communication, the petition said.
The Medical Termination of Pregnancy Act permits abortions after 20 weeks only if continuation of the pregnancy poses a threat to the child's or the mother's life.