Abortion is a delicate topic all over the world, with each and every country, region, and culture sharing different opinions about it. Some give more value to the mother’s life and health, whilst others believe that from the moment of conception, the fetus has a life of its own, and abortion will take away a precious life[1]. In the last 20 years, India has seen a significant decrease in the number of girls born; one reason for this is the introduction of medical equipment that allows for sex selection. Another prevalent factor, which is assessed through prenatal genetic testing, is the presence of chromosomal aberrations in the fetus leading to disorders like Down’s syndrome. This article explains what genetic testing is, how chromosomal aberrations are detected through the same and what was the court’s point of view when it came to an understandingof the need for aborting such children.

Genetic Testing

Prenatal diagnostic procedures[2] such as chorionic villus sampling (CVS) and amniocentesis are used to detect fetal abnormalities. Chorionic villus sampling (CVS) is used to detect birth defects, genetic diseases, and other pregnancy complications. A small sample of cells (called chorionic villi) is taken from the placenta, where it attaches to the uterine wall during the test. Chorionic villi are tiny parts of the placenta that develop from a fertilized egg and thus share the same genes as the baby. Amniocentesis is a screening test. It is typically performed between 15 and 20 weeks of pregnancy, but it can be performed up until birth. A very thin needle is used to withdraw a small amount of amniotic fluid during the test[3]. The procedure is guided by ultrasound.

Chromosomal Aberrations

This refers to the variations in one’s chromosomal gene set. It can occur due to genetic inheritance or when exposed to environmental radiation. It can either happen when there is an abnormality in the structure of the chromosomes or a change in the number of chromosomes. The latter happens when either a chromosome or a pair of chromosomes is missing or when an extra one is present in place of a normal set. When one of the pair’s chromosomes is missing, the condition is known as monosomy (2n-1) for that chromosome; for example, monosomy, when a chromosome is present in three copies, the condition is known as trisomy (2n+1), for example, trisomy of chromosome X[4].

Now the presence of an extra chromosome leads to aneuploidy. The most common aneuploid disorders seen with a fair amount of frequency is the trisomies of chromosome number 13, 18, and 21, which are found in live-born children. These are named Patau, Edward, and Down syndromes, respectively.

Down’s Syndrome

The interest of this discussion culminates in the most common trisomy called Down’s syndrome[5]. Its frequency of occurrence is 1 per 800 live births[6]. It occurs due to trisomy of chromosome number 21, which in turn takes place due to the non-disjunction of chromosomes during cell division. The likelihood of having a Down syndrome baby in the family rises with maternal age. It has been reported that more than 85% of Down syndrome babies are born to mothers over the age of 35 during pregnancy. Various clinical signs and symptoms include Down’s syndrome is distinguished by the following characteristics: a flat face, a slanting eye, a small mouth, a protruding tongue, a flattened nose, a short neck, short arms and legs, a single deep crease across the palm, a low IQ, stunted growth, muscular hypotonia, and underdeveloped gonads. Babies with Down syndrome may also have breathing, heart, or hearing issues.[7]

A child requires special care when suffering from this disorder. Moreover, there is no standard way to cure this disorder a result of which parents usually choose to abort a child who is diagnosed during pre-natal testing as a down syndrome sufferer[8].

The Verdict

In a 2017 case of Komal Hiwale v. State of Maharashtra[9], the petitioner was a 24-25 weeks pregnant 37-year-old lady who wanted the High court of Bombay to grant her permission to selectively abort one of her twin fetuses which were suffering from down’s syndrome. Initially, the bench comprising Justice R. Banumathi, Justice Indu Malhotra, and Justice Aniruddha Bose decided to reject the plea as they felt that it might not be safe for both the mother and the second fetus. In subsequent deliberations, they set up the Medical Board to give their opinion. Dr. Purnima Satoskar, head of the medical board, reinstated that one of the fetuses was affected by down syndrome, whereas the other was chromosomally normal. She stated that the multiple financial, logistical, and mental challenges that the parents may face with such a child cannot be overlooked and hence, suggested selective abortion of one of the fetuses. The procedure carries negligible risks to the mother, similar to amniocentesis, and has been proven extremely safe in large series with no maternal deaths.

After extensive discussion, the mother voluntarily chose selective fetal reduction as her preferred option after fully understanding the risks and benefits, and she further submitted a handwritten letter expressing her decision. In view of the Medical Board’s decision, the bench decided to allow the female to go further with this abortion.

However, in the year of 2020, the Supreme Court overturned the Bombay High Court’s decision and prohibited fetal reduction. The bench, comprised of Justices S.A. Bobde and L.N. Rao. said that “we have a life in our hands”[10]. They further stated that a child born with this syndrome might be unique, but they have the capability to lead a considerably long and happy life. In reaching this decision, the court raised two intriguing questions worth investigating first, whether abortion is legal if the fetus itself endangers the woman’s life. Second, whether termination would be permitted if it could harm the other normal fetus.


The above discussion and the case are the primal examples that emphasize the need to have pro-advocates who work in close association with the medical and nursing fraternity. It is important for society to overcome the backwardness in their thinking, and it is the need of the hour to prevent them from discriminating against individuals on the basis of their pre-disposed disorder. People suffering from syndromes like Down’s syndrome are also highly capable and, with slight input from their well-wisher’s end, can allow them to lead a life close to normal. It is also normal for a pregnant woman to be apprehensive about such a child and their subsequent growth; owing to this reason, she should also be well informed and made aware of the possibilities wherein her child gets to live a happy and fulfilling life. The support of one’s partner, family, and friends can be proven to be beneficial during such times. Lastly, the cogent decision by the court to protect every life shall be absolutely ingrained and followed in society. Complying with the ethical standards of living should be the goal of society as a whole.

Author(s) Name: Snigdha Ghose (Gujarat National Law University, Gandhinagar)


[1]Manisha Garg, Right to Abortion, Legal Service India<https://www.legalserviceindia.com/articles/adp_tion.html>(last visited Dec 5, 2022).

[2]K.G. Fulda, K. Lykens, Ethical issues in predictive genetic testing: a public health perspective,Journal of medical ethics(Mar. 2006) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2564466/>(last visited Dec 5, 2022).

[3]Chorionic Villus Sampling and Amniocentesis: Recommendations for Prenatal Counselling, <https://www.cdc.gov/mmwr/preview/mmwrhtml/00038393.htm#:~:text=Chorionic%20villus%20sampling%20(CVS)%20and,and%20birth%20defects%20in%20infants>(last visited Dec 5, 2022).

[4]TülayAskinCelik, Introductory Chapter: Chromosomal Abnormalities, 3, (2020), <https://www.researchgate.net/publication/346851809_Introductory_Chapter_Chromosomal_Abnormalities>.

[5]National Council of Education Research and Training, Biology – Textbook For Class 12 217-220 (2013).

[6]Down Syndrome (Trisomy 21) in Children, <https://www.stanfordchildrens.org/en/topic/default?id=down-syndrome-trisomy-21-90-P02356>(last visited Dec 6, 2022).

[7]Faisal Akhtar; Syed Rizwan A. Bokhari, Down Syndrome, Journal of medical ethics(6 Sept. 2022<)https://www.ncbi.nlm.nih.gov/books/NBK526016/>.

[8]Nemours KidsHealth, Down Syndrome, <https://kidshealth.org/en/parents/down-syndrome.html>(last visited Dec 5, 2022).

[9]Komal Hiwale v. State of Maharashtra, (2020) MANU/SCOR/29843/2020 (India).

[10]Aparna Verma, SC ALLOWED TERMINATION OF PREGNANCY WITH SERIOUS ABNORMALITIES (KOMAL HIWALE V. STATE OF MAHARASHTRA), Lawsist, (Jul 28, 2020), <https://lawsisto.com/legalnewsread/NzA4NQ==/SC-Allowed-Termination-of-Pregnancy-With-Serious-Abnormalities-Komal-Hiwale-V-State-of-Maharashtra>(last visited Dec 5, 2022).

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