On August 4, 2008, Justices Khandeparkar and Amjad Sayed pronounced the judgment that sealed Niketa’s choice to abort her 25-week-old foetus. The judgment triggered immediate debate — pro-choice versus pro-life, the right of the mother versus the right of her unborn child, the benefit of new diagnostic techniques versus the right to life guaranteed by the Constitution. But will Niketa’s dilemma serve as the trigger for amending the Medical Termination of Pregnancy Act?

Section 3 (2)(a) of the act permits abortion up to twelve weeks of pregnancy under the certification of one medical practitioner. Section 3 (2) (b) allows abortion between twelve weeks up to twenty weeks, if two medical practitioners certify in good faith that the pregnancy poses (i) a threat to the woman’s life or (ii) there is substantial risk that if the child was born it would suffer from such physical or mental abnormalities as to seriously handicap it. Niketa had sought an exemption from the 20 weeks limit from the court.

Consequently, the court sought an opinion in context to the state of the health of the foetus from a government hospital. Relying on the expert medical opinion submitted by the dean of JJ hospital, the court concluded that in the absence of a categorical assertion that, if born, the baby would suffer from such serious physical or mental abnormalities as to seriously handicap its life, it declined to waive the limit of 20 weeks in Niketa’s favour. Niketa’s petition was rejected.

Later the dean apparently admitted that the report submitted to the court contained a “typographical error”. We can only speculate whether the absence of the typographical error which changed the phrase “fair chance” to “least chance” would have, in fact, altered the course of Niketa and her foetus’ life. Would it have caused the high court to exercise its extraordinary jurisdiction in support of Niketa’s choice? These are imponderable questions.

... contd.