SC Allows Woman With Twin Pregnancy To Medically Terminate One Foetus With Down Syndrome

In an interesting turn of events, we saw how just recently on June 16, 2020, the Supreme Court went ahead to allow a woman bearing 25 weeks old twin pregnancy, to undergo procedure for foetal reduction on the grounds of 'serious foetal abnormalities'. It must be mentioned here that a three Judge Bench of Supreme Court comprising of Justices R Banumathi, Indu Malhotra and Anirudha Bose allowed the special leave petition preferred against the order of the Bombay High Court, whereby the petitioner was denied relief. It must also be mentioned here that termination of pregnancy on the ground of 'physical or mental abnormalities' of the unborn child as envisaged in Section 3(2)(ii) of the Medical Termination of Pregnancy Act, 1971 clearly states that a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy exceeds twelve weeks but does not exceeds twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith 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.

Truth be told, we see that here in the present case, the women was 25 weeks pregnant, i.e. beyond the threshold provided under the Act. The women needed permission of the Court to do what she wanted. She had to therefore approach the Court seeking permission to terminate the pregnancy.

To start with, the ball is set rolling in para 1 wherein it is stated that, 'We have heard Mr Colin Gonsalves, learned senior counsel appearing for the petitioner.' It is then stated in para 2 that, 'The petitioner who is now pregnant by about 24-25 weeks, had sought permission for foetal reduction of one foetus which is affected with down syndrome.'

While elaborating on the background of the case, the Bench then points out in para 3 that, 'By order dated 22.05.2020, the High Court had declined to grant permission for foetal reduction. The High Court was of the view that it may not be safe for the mother, and secondly foetal reduction of one foetus, may affect the other normal foetus.'

Going forward, the Bench then brings out in para 4 that, 'By order dated 10.06.2020, we had directed the same Medical Board to be re-constituted, and submit an additional report on two issues: (i) To give further opinion whether the abortion of one foetus will affect on the life of the petitioner-mother; (ii) Whether the abortion of one foetus will have an effect on the surviving second foetus.'

To be sure, the Bench then recalls in para 5 that, 'We had further directed that an Additional Member be included in the Medical Board, who is a specialist in Foetal Medicine. The Medical Board included Dr. Purnima Satoskar, MD, a Full Time Professor, Department of Obstetrics and Gynecology at Seth G.S. Medical College and Head of Unit & Foetal Medicine Department at Nowrosjee Wadia Maternity Hospital, Mumbai, who has examined the petitioner – Komal Hiwale and has given the following opinion:

'After going through all the reports, I conclude that she has dichorionic diamniotic twin pregnancy. Today she is around 25 weeks pregnant. One foetus is affected with trisomy 21. The other foetus (fetus A) is chromosomally and structurally normal.''

It would be worthwhile to mention here that it is then laid bare in para 6 that, 'Dr. Purnima Satoskar has referred to the Guidance Note for Medical Boards for Termination of Pregnancy beyond 20 weeks Gestation as recommended by the Ministry of Health and Family Welfare, Government of India, which permits selective foetal reduction and gave her opinion as under:

'Note on trisomy 21 (Down Syndrome)

This is a chromosomal abnormality and has no treatment. The baby will suffer from significant mental retardation, intellectual disability and may also have other health conditions like heart disease etc. in the affected person. Thus, leading to severe limitations on the patient who needs a full time caregiver and causes mental, logistical and financial challenges to the parents.

It is classified in the list of substantial and serious abnormalities by the MDHFW in its Guidance Note for Medical Boards for Termination of Pregnancy beyond 20 weeks Gestation.''

More crucially, it is then very rightly underscored in para 7 that, 'Dr. Purnima Satoskar, in her conclusion, has opined that there is no direct risk of the procedure to the normal twin and opined as under:

'In dichorionic twins, there is no direct risk of the procedure to normal twin as the circulations of the twins are separate.

The procedure carries negligible risks similar to amniocentesis to mother and is proven extremely safe and large series with no maternal deaths.

After discussing this at length with the mother, she voluntarily came up with selective foetal reduction as her preferred choice after fully understanding the risks and benefits and has submitted a handwritten letter expressing the same.

In conclusion, I find no medical reason not to provide the treatment of foetal reduction converting the twin pregnancy with one twin affected with Down syndrome to singleton pregnancy.''

Furthermore, it is then pointed out by the Bench in para 8 that, 'We have gone through the earlier report and also the present report submitted by the Medical Board.'

Finally and most crucially, the three Judge Bench of the Apex Court while disposing of the special leave petition and considering all the facts of this particular case holds in para 9 that, 'In view of conclusion of the Medical Board, the impugned order of the High Court is set aside and the petitioner – Komal Hiwale is permitted to undergo foetal reduction as per the procedure stated by Dr. Purnima Satoskar. The petitioner – Komal Hiwale as well as her husband shall give their individual consent for selective foetal reduction. A copy of the two affidavits shall be filed before this Court and the same shall form part of the record.'

In conclusion, the three-Judge Bench of the Apex Court has very consciously, very convincingly and very commendably permitted a woman who was bearing 25 weeks old twin pregnancy to undergo procedure for foetal reduction on the grounds of 'serious foetal abnormalities'. There can be no denying or disputing it! It goes without saying that it is just a mere coincidence and nothing else that the two Judges out of the three who delivered this latest, landmark and extremely laudable judgment – Justice R Banumathi and Justice Indu Malhotra are themselves woman!