Akhila K and Anil Kumar P K v Union of India and Others

W.P(C).No.3230/2021-C 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942** ## **WP(C).No.3230 OF 2021(C)** ## **PETITIONERS:** |**1**|**AKHILA K**| |---|---| ||**AGED 36 YEARS**| ||**WIFE OF ANIL KUAMR P K, RESIDING AT PLAMKUDIYIL,**| ||**AYROORPADAM P.O. KOTHAMANGALAM, ERNAKULAM 686 692.**| |**2**|**ANIL KUMAR P K,**| ||**AGED 40 YEARS**| ||**SON OF KUNJIRAMAN,**| ||**RESIDING AT PLAMKUDIYIL, AYROORPADAM P.O.**| ||**KOTHAMANGALAM, ERNAKULAM 686 692.**| **BY ADVS. SHRI. AKASH S. SMT.A.MEGHA** ## **RESPONDENTS:** |**1**|**THE UNION OF INDIA**| |---|---| ||**REPRESENTED BY ITS SECRETARY, MINISTRY OF WOMEN AND**| ||**CHILD DEVELOPMENT, SASTHRI BHAVAN,**| ||**NEW DELHI 110 001.**| |**2**|**THE STATE OF KERALA,**| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**MINISTRY OF CHILD WELFARE, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM 695 001.**| |**3**|**THE DIRECTOR OF HEALTH SERVICES,**| ||**GENERAL HOSPITAL JUNCTION,**| ||**THIRUVANANTHAPURAM 695 035.**| |**4**|**THE DIRECTOR OF MEDICAL EDUCATION,**| ||**MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKUZHI,**| ||**THIRUVANANTHAPURAM 695 015.**| |**5**|**THE DISTRICT MEDICAL OFFICER,**| ||**KOTTAYAM DISTRICT, FIRST FLOOR,**| ||**COLLECTORATE BUILDING, KOTTAYAM 686 002.**| W.P(C).No.3230/2021-C 2 - **6 THE SUPERINTENDENT, THE GOVERNMENT MEDICAL COLLEGE, GANDHINAGAR, KOTTAYAM 686 008.** **SMT.VINITHA.B, GOVERNMENT PLEADER, SRI.P.VIJAYA KUMAR, ASSISTANT SOLICITOR GENERAL OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).No.3230/2021-C 3 ## _**P.V.ASHA, J**_ **.** ## **-----------------------------------------------------** W.P(c) No.3230 of 2021-C ---------------------------------------------------- _Dated this the 11[th] day of February, 2021_ ## _**J U D G M E N T**_ The petitioners, who are husband and wife, have filed this Writ Petition seeking a direction to the respondents to allow the 1[st] petitioner to undergo medical termination of pregnancy producing Exts.P3 to P7 medical reports. 2. The 1[st] petitioner is aged 36 years and the gestation period has crossed 30 weeks. The petitioners state that foetal echocardiography and obstretic ultrasonography reports have concluded that the foetus is suffering from infantile marfan syndrome, which is a rare severe and life-threatening, genetic disease occurring during the neonatal period and the same has a higher mortality rate. When the Writ Petition came up for admission on 9.2.2021, an interim order was passed directing the Superintendent of the Government Medical College, Kottayam to convene a medical board in tune W.P(C).No.3230/2021-C 4 with G.O(Rt).No.2444/2020/H&FWD dated 31.12.2020 in order to examine the medical condition of the 1[st] petitioner as well as the foetus and also on the claim of the petitioners for medical termination of pregnancy. 3. Smt.B.Vineetha, the learned Government Pleader, made available the report of the Medical Board dated 10.02.2021 wherein the Medical Board consisting of the following 7 experts opined as follows: _"1. Dr.Sajitha.K, Professor & HOD, Radio Diagnosis_ _2. Dr.Sudhakumary.V, Assoc.Professor, Cardiology_ _3. Dr.M.V.Radhamani, Addl.Professor, O&G_ _4. Dr.Bindhu, Assoc. Professor, Paediatrics_ _5. Dr. Haris, Assoc.Professor, Neuro Medicine_ _6. Dr. Venu Gopal, Addl.Professor, Pulmonary_ _Medicine_ _7. Dr.Nishanth, Asst.Professor, Psychiatry._ _The medical board has examined the first petitioner & observed the following facts._ _G5P1L1A3, LMP-13/7/2020, EDC:20/4/2021_ _Gestational age 30 wks 1day, No history of maternal co morbidities. Father is diabetic._ _On examination patient conscious, oriented and cooperative, Pulse 88/mt, BP 120/70, P/A uterus 28 wks, cephalic presentation, foetal heart 140 per minutes._ _USG showed single live intra uterine gestation with foetal heart disease._ _ACHD-Large VSD & mild aortic override. Prominent aortic root._ _Psychiatric opinion : - No active psychiatric diagnosis entertained._ W.P(C).No.3230/2021-C 5 _Cardiology opinion : There is substantial risk that if the child is born it would suffer from physical ailments due to heart disease. The heart disease may require surgical correction. The disease does not amount to serious handicap._ _Neurology opinion : No foetal neurological defect reported in the USG._ _Pulmonology opinion : No pulmonologic problems anticipated._ _Obstetrician opinion : As the pregnancy has reached 30 weeks 1 day, it is not advisable to do MTP at present. She is a case of previous LSCS. So she may require repeat LSCS._ _From the above findings the medical board jointly has come to the following conclusion._ _Even though there is congenital heart disease (VSD) it is surgically correctable. There is chance of baby born alive that needs extra neonatal care due to prematurity. There is no maternal risks for continuation of pregnancy._ _So medical termination of pregnancy is not recommended.”_ 4. Thus the Medical Board has not recommended MTP pointing out that pregnancy has reached 30 weeks and 1 day as on 10.2.2021. It is also stated that she is a case of previous LSCS and may require repeat LSCS. The conclusion arrived at by the Medical Board is that the congenital heart disease is surgically correctable and there is no maternal risks for continuation of pregnancy. The Psychiatrist who examined the petitioner also did not find any active psychiatric diagnosis. W.P(C).No.3230/2021-C 6 5. The learned counsel for the petitioners, referring to the reports from the Amrita Institute of Medical Sciences, argued that the Medical Board has not looked into those reports relating to infantile marfan syndrome detected in Ext.P7 and that the said syndrome as well as its detection at this stage occur in the rarest of rare cases. Pointing out that the petitioners are very much worried of the outcome of continuation of pregnancy, the learned counsel for the petitioners argued that it is necessary to permit medical termination of pregnancy or that the 1[st] petitioner should be subjected to examination by another Medical Board calling for opinion with respect to the neonatal marfan syndrome found in Ext.P7. 6. On the other hand, the learned Government Pleader pointed out that the duly constituted medical board, after examining the 1[st] petitioner in detail, has not recommended medical termination of pregnancy and they have also found that congenital heart disease can be corrected surgically. She also pointed out the sufferings which the baby would have to experience on a premature birth when it is already having cardiac W.P(C).No.3230/2021-C 7 problems, as the medical board has found every possibility of the baby being born alive. It was also pointed out that if at all the child is having any abnormalities, the CWC would be ready to take care of the child. 7. Having heard the contentions on both sides, I am of the view that when the recommendation of a duly constituted Medical Board of a Government Medical College, which is one of the Colleges which is authorised by Government to convene a medical board to examine the case where the period of pregnancy exceeded 20 weeks, is negative, and when it concluded that the cardiac aliment of the foetus can be corrected, this Court would not be justified in issuing any directions to the respondents to carry out MTP. All the 7 experts in different fields which include Paediatrician as well as Psychiatrist have negatived the claim for MTP. 8. The learned counsel for the petitioners submitted that the Medical Board has not referred to the neonatal marfan syndrome diagnosed in Ext.P7. It is seen that the petitioners have themselves stated that cardiac surgery is the only available remedy. The W.P(C).No.3230/2021-C 8 request of the petitioners to refer the case to another Medical Board cannot also be granted as the examination already undertaken is by the Medical Board of one of the Government Medical Colleges which are identified by the Government in the Government Order dated 31.12.2020 along with those at Alappuzha, Thiruvananthapuram, Thrissur and Calicut. 9. When the competent body comprising of experts in the field has ruled out the claim for MTP, this Court finds that the request of the petitioners is not liable to be granted, when the gestation period has already crossed 30 weeks and within a few more weeks the foetus would be fully developed enabling a normal delivery on completion of requisite gestation period. Permitting a medical termination of pregnancy contrary to the findings of the medical board which found the chances of the baby being born alive, would amount to grant of permission for foeticide which is not permissible. Therefore Writ Petition is dismissed. _Sd/-_ **==> picture [221 x 13] intentionally omitted <==** _rtr/_ W.P(C).No.3230/2021-C 9 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE AADHAR IDENTITY CARD OF THE 1ST PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE AADHAR IDENTITY CARD OF THE 2ND PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE LABORATORY REPROT FROM THE SABINE HOSPITAL AND MEDICAL RESEARCH CENTRE PVT. LTD. DATED 23 AUGUST 2020 CONFIRMING THE PREGNANCY OF THE 1ST PETITIONER.** - **EXHIBIT P4 TRUE COPY OF ULTRA SONOGRAPHIC OBSTETRIC SCAN REPROT FROM SABIE HOSPITAL DATED 07 DECEMBER 2020.** - **EXHIBIT P5 TRUE COPY OF THE FOETAL ECHOCARDIOGRAPHY REPROT DATED 08 DECEMBER 2020 PERFORMED AT THE AMRITA INSTITUTE OF MEDICAL SCIENCES.** - **EXHIBIT P6 TRUE COPY OF THE FOETAL ECHOCARDIOGRAPHY REPROT DATED 04 FEBRUARY 2021 PERFORMED AT THE AMRITA INSTITUTE OF MEDICAL SCIENCES.** - **EXHIBIT P7 TRUE COPY OF THE OBSTETRICS TRIMESTER SCAN REPROT DATED 04 FEBRUARY 2021 PERFORMED AT THE AMRITA INSTITUTE OF MEDICAL SCIENCES.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 04.04.2020 IN WPC TMP 9/2020, ABC v. UNION OF INDIA.**