Asking if there is any provision for mercy killing or to take away life once there is life, a division bench of Justice R M S Khandeparkar and Justice Amjad Sayed rejected the petition filed by Niketa, who is in the 26th week of her pregnancy, and her husband Haresh Mehta along with their gynaecologist Dr Nikhil Dattar.

The court, expressing its helplessness in the matter, strictly went by the law which says that a foetus can be aborted after 20 weeks only if there is a fatal risk to the mother and not the child.

Laws pertaining to Medical Termination of Pregnancy Act 1971 are currently under the scanner with doctors and activists seeking an amendment to confront cases where there are chances that the child will be born incapacitated.

“In other words, even if the petitioners had approached the court before 20 weeks it would not have been possible for the court to allow termination of pregnancy,” as the court did not have powers to legislate, Justice Khandeparkar said in the order.

The court came to the conclusion after calling for expert opinion from government doctors as well as doctors consulted independently by the petitioners for which the court had granted them liberty.

On Friday, the court directed the three-member committee at J J Hospital to revert with a confirmed report as the earlier one had contradictory opinions. The earlier report, submitted by Dr Ashok Anand (gynaecologist) Dr N O Bansal (cardiologist) and Dr Neeta Sutay (paediatrician), had stated that “Sonography report shows that the foetus has a congenital complete heart block¿without any structural defects, it is viable to normal life provided there are no other structural anomalies in the heart.”

The consensus of the panel was that “there are very fair chances that the child will be born incapacitated to survive”.

However, the report had stated that “on medical reasons, the committee feels the findings observed do not have substantive significance to resort to termination of pregnancy. However, it is the liberty of the patient to choose continuation of pregnancy after knowing the realty,” the committee had said.

On Monday though, the committee clarified that “there are very least chances that the child will be born incapacitated to survive”, prompting the bench to observe that there was no categorical opinion before it to the effect that the child after birth would be seriously handicapped.

Moreover, the court noted that the report filed by petitioners based on conclusions reached by Dr Shakuntala Prabhu (Paediatrician) and Dr Snehal Kulkarni (Cardiologist) “nowhere discloses any physical or other abnormalities of serious danger where quality of life is likely to be seriously compromised or incapacitated.” The report states that a pacemaker is not a one-time solution to the problem as it has to be changed.

“Undoubtedly the opinion given by the two doctors refers to a possibility of a substantial risk if the child is born, it would suffer from physical or mental abnormalities. However, the opinion itself discloses the necessary treatment which is required to be given,” the court observed.

Earlier, the petitioners’ lawyer, Jamshed Mistry, had submitted that changing the pacemaker every five years was not economically viable for the family. Also, life would be traumatic not only for the couple but also for the child, he had said. The court had then stated that the state government can help in case of financial difficulty.

The Mehtas learnt about the complete congenital heart blockage of the foetus after an echocardiogram test at Dr Dattar’s clinic in Mumbai’s Goregaon suburb two weeks ago when Niketa was in the 24th week of her pregnancy. Dattar consulted a reputed cardiologist as well as a pediatrician after the report was available. “She was in the 24th week of pregnancy and they knew it cannot be aborted legally as the cut-off date was over,” said their lawyer Jamshed Mistry. “They asked the doctor if the child can be aborted to which the doctor replied in the negative following which they moved court.”