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Since 1st March, 1999
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Court upholds abortion bar
Niketa Mehta

Mumbai, Aug. 4: Niketa Mehta will have to continue with her pregnancy in spite of the 25-week-old foetus having a heart ailment with Bombay High Court toeing a modified medical report which said there were “least chances” of the child being born incapacitated.

Raising issues of quality of life, the 31-year-old woman and husband Haresh had sought an amendment to the Medical Termination of Pregnancy (MTP) Act that now stipulates abortions can be carried out within 20 weeks of pregnancy to avoid contingencies. A doctor can terminate pregnancy after 20 weeks only if the mother’s life is at risk.

The Mehtas had found out in the 22nd week of pregnancy that the foetus had a congenital heart ailment.

The court dismissed the petition after going through the report submitted by doctors from JJ Hospital that said there were “least chances” of the child being born with a handicap.

The division bench of Justice R.M.S. Khandeparkar and Justice Amjad Sayed said it would be wrong to end life. “There is no medical evidence on record to say that he will be handicapped after birth,” the judges said.

Stating that they could not alter provisions of the MTP Act, the judges said: “The petitioners have not made out that this lady’s case is exceptional for us to use discretionary powers.”

“It is the job of the legislature to help you alter the provision. We cannot legislate the provision,” Justice Khandeparkar said.

The case, due to be heard in the morning, was pushed to the afternoon as the judges took time to mull over the report, which was vastly different from the one the same panel had submitted last week.

The JJ Hospital committee had told the court on Friday there were “fair chances” of the child being born with “serious congenital handicap” and had left the decision to terminate pregnancy to the parents. Describing the findings as “half-hearted”, the court had directed the panel to come back with a clear report, which it did today.

“The court viewed the changed stand of the doctors not as a turnaround but as a correction of medical opinion,” said Amit Karkhanis, the couple’s lawyer.

The teacher couple’s doctors say the child, if its born, will have to be fitted with a pacemaker that will have to be replaced every four years. The Mehtas have pointed out that pacemakers are costly and it would be difficult for them to make replacements every five years.

Niketa, while waiting for the judgment, had said she would move the Supreme Court if the high court rejected her petition. But her lawyer indicated after the ruling that the family was in two minds about carrying the case forward.

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