Akhila K. and Anil Kumar P.K. v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942** **WA.No.337 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 3230/2021(C) OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 AKHILA K. AGED 36 YEARS,W/O ANIL KUMAR P.K., RESIDING AT PLAMKUDIYIL, AYROORPADAM P.O., KOTHAMANGALAM, ERNAKULAM-686 692.** - **2 ANIL KUMAR P.K., AGED 40 YEARS, S/O KUNJIRAMAN, RESIDING AT PLAMKUDIYIL, AYROORPADAM P.O., KOTHAMANGALAM, ERNAKULAM-686 692.** **BY ADVS. SHRI. AKASH S. SMT.A.MEGHA** ## **RESPONDENTS/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,** **2** ## **W.A.No.337 of 2021** **MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKUZHI, THIRUVANANTHAPURAM-695 015.** - **5 THE DISTRICT MEDICAL OFFICER, KOTTAYAM DISTRICT, FIRST FLOOR, COLLECTORATE BUILDING, KOTTAYAM-686 002.** - **6 THE SUPERINTENDENT, THE GOVERNMENT MEDICAL COLLEGE, GANDHINAGAR, KOTTAYAM-686 008.** **SRI. P.VIJAYAKUMAR, ASG FOR R1, SRI. V. TEK CHAND, SR GP FOR R2 TO R6** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.337 of 2021** **3** ## **JUDGMENT** Dated this the 16[th] day of February, 2021 ## **S.Manikumar, C.J.** Instant writ appeal is directed against the judgment in W.P(C). No.3230 of 2021 dated 11.02.2021, by which a learned single Judge of this Court declined to issue any direction to the respondents, to allow the 1[st] petitioner therein/1[st] appellant in this writ appeal, to undergo medical termination of pregnancy. 2. Short facts leading to the filing of writ appeal are as under: Appellants are the wife and husband respectively. The 1[st] appellant was informed that she is pregnant on 23.08.2020 and has thereafter carried out routine medical checkups. The 1[st] appellant is currently in the 31[st] week of pregnancy. The foetal echocardiography and obstetric ultrasonography scan conducted on her revealed that the foetus may be suffering from a rare, severe and life threatening prognosis, and 95% of the babies born with the Syndrome have not survived, even for one year. 3. Appellants have further stated that the Medical Board constituted, in accordance with the interim order of the learned single Judge, has completely ignored the finding that the foetus is suffering from Neonatal Marfan Syndrome, even after presentation of reports, by the 1[st] appellant, at the time of examination and relied on the **W.A.No.337 of 2021** **4** ultrasonography done where only a cardiac defect was revealed. 4. It is stated that similar findings were made at the Amrita Institute of Medical Sciences, during the 20[th] week of gestation, which gave the appellants enough hope to proceed with the pregnancy and which stood corrected by the Foetal Echocardiography and Obstetrics Trimester Scan conducted at the 28[th] week. The Medical Board advised that the foetus is suffering from a cardiac condition, ventricular septal defect, which is surgically curable and that the medical termination of pregnancy is not advised. Accordingly, the writ court dismissed the writ petition, based on the advice of the Medical Board. 5. Operative portion of the impugned judgment is reproduced: "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 **W.A.No.337 of 2021** **5** marfan syndrome diagnosed in Ext.P7. It is seen that the petitioners have themselves stated that cardiac surgery is the only available remedy. The 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." ## 6. Being aggrieved, instant appeal is filed on the following ## grounds: - “A. The scan reports at AIMS dated 04.02.2021 observed that the noted that the foetus had dolicocephalic skull, narrow tubular cavyum septi pellucidi and limbs that appear elongated and thinned out with reduced mass and hyperflexible joints. The scan further indicated that all of the limbs measured more **W.A.No.337 of 2021** **6** than 99[th] centile while the abdominal circumference falls at 5[th] centile for the period of gestation. None of these findings, which directs at Neonatal Marfan Syndrome were reflected in the report of the medical board. The learned Single Judge, in light of strikingly contradicting medical reports, should have either sought for further clarification from the medical board or referred the matter to another medical board. - B. The medical board constituted should have considered the scan reports presented by the 1[st] Appellant during examination and should have addressed the issue of Neonatal Marfan Syndrome, at least to the extent whether the condition exists in the foetus. The learned Single Judge ought to have clarified this before dismissing the Writ Petition. - C. Neonatal Marfan Syndrome has such poor prognosis that 95 per cent of the babies born with the condition dies within a year (Y. V. Kodolitsch, M. Raghunath, and C. A. Nienaber, "The Marfan syndrome: prevalence and natural history of cardiovascular manifestations," Zeitschrift fur and Kardiologie, vol. 87, no. 3, pp. 150-160, 1998). Even in nations where most advanced medical care and technologies are available, babies born with Neonatal Marfan Syndrome are moved to palliative care, because of the severity of the disease and poor prognosis (Sole-Ribalta, et al., "Neonatal Marfan Syndrome: A rare, severe and life-threatening genetic disease", The Journal of Pediatrics, 211, pp. 221, 2019). In such case, the only option left with the parents would be to helplessly watch the condition of their baby deteriorating and eventually, their baby succumbing to death. D. The task force constituted by the American Psychological **W.A.No.337 of 2021** **7** Association found that terminating a wanted pregnancy, especially late in pregnancy, can be associated with negative psychological experiences comparable to those experienced by women who miscarry a wanted pregnancy or experience a still birth or death of a new born, but less severe than those experienced by women who deliver a child with severe abnormality [Major, B. et al. (2008), Report of the APA Task Force on Mental Health and Abortion]. - E. The Hon'ble Supreme Court of India in Sonali Kiran Gaekwad v Union of India [WP(C) 928 of 2017] held that "...continuing with pregnancy will cause more mental anguish to the Petitioners" and therefore, allowed the medical termination of pregnancy. In the matter, the medical report indicated that the mother's life was not in danger. - F. The Hon'ble Supreme Court expressed the view that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution [Suchita Srivastava & Anr. vs. Chandigarh Administration [(2009) 9 SCC 1)]. The apex court also added that she has a sacrosanct right to have her bodily integrity. - G. In K.S. Puttuswamy vs. Union of India 2017 (10) SCC 1, Dr. Chandrachud, J. speaking for the majority of the Supreme Court held that life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the State is to safeguard the ability to take decisions - the autonomy of the individual - and not to dictate those **W.A.No.337 of 2021** **8** decisions. - H. In Z v. State of Bihar 2018(11) SCC 572, the Hon'ble Supreme Court emphatically reversed the order of the Hon'ble High Court of Bihar stating that the order of the High Court denying permission for the Petitioner to undergo medical termination of pregnancy was "completely erroneous". The Hon'ble High Court of Bihar had dismissed the Petition in light of the advice of the medical board against medical termination of pregnancy. In the instant matter, the only prayer of the Appellants is to rule out the possibility of the foetus having Neonatal Marfan Syndrome. ” 7. Though several grounds have been raised, Mr. S. Akash, learned counsel for the appellants, relying on the report of the AIMS dated 4.2.2021, contended that the observations and findings of the said report, has not been considered by the Medical Board constituted, pursuant to the directions of this court. Grievance of the appellants is that the scan reports, though presented, were not considered by the Board, and that the writ court ought to have adverted to the same. On the basis of some of the texts, further contention has been made that the survival of the baby for a longer period is less. Except the above, no other ground is urged. 8. Heard learned counsel for the appellants and perused the material on record. **W.A.No.337 of 2021** **9** 9. Before adverting to the above contentions, the observations of the Division of Fetal Medicine & Perinatology, Amrita Institute of Medical Sciences and Research Centre, on 4.2.2021, when the gestation period was 29 weeks and 3 days, are reproduced: “The overall ultrasound picture seems to suggest the possibility of an underlying connective tissue disorder, possibly INFANTILE MARFAN SYNDROME Comment: The scan and its implications have been explained to the couple in detail. In view of the presence of multiple soft tissue, skeletal findings and cardiac abnormalities as described, the possibility of the presence of connective tissue disorder needs to be ruled out. We would hence recommend a paedistric genetics consultation. The options of an amniocentesis and the pros and cons of such testing at this gestational age have been explained to the couple in detail. Suggested: 1. Pediatric genetics consultation 2. Amniocentesis for DNA isolation and gene sequencing” ## 10. Opinion of the Medical Board dated 10.2.2021, extracted by the writ court, is reproduced: - "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 **W.A.No.337 of 2021** **10** ## 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. 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.” ## 11. From the report of AIMS dated 4.2.2021, it could be deduced that a Professor, Department of Pediatric Cardiology, Amrita Institute of Medical Sciences and Research Centre, has examined the first appellant, when the gestation period was 29 weeks and 3 days, and whereas the **W.A.No.337 of 2021** **11** Medical Board, comprising of 7 experts, namely, Dr.Sajitha.K, Professor & HOD, Radio Diagnosis; Dr.Sudhakumary.V, Assoc.Professor, Cardiology; Dr.M.V.Radhamani, Addl.Professor, O&G; Dr.Bindhu, Assoc. Professor, Paediatrics; Dr. Haris, Assoc.Professor, Neuro Medicine; Dr. Venu Gopal, Addl.Professor, Pulmonary Medicine and Dr.Nishanth, Asst.Professor, Psychiatry, has opined as extracted supra. 12. Though the learned counsel for the appellants contended that Infantile Marfan Syndrome, observed by the AIMS, has not been taken note of by the Medical Board, cardiology opinion clearly states that there is heart disease. The child born would suffer from physical ailments, due to heart disease, which may require surgical correction. Medical opinion further states that “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.” Medical Board has further opined that the disease does not amount to serious handicap and on the findings recorded by the specialist doctors, on various disciplines of medicine, further categorically opined that termination of pregnancy is not recommended. 13. Perusal of the impugned judgment shows that the learned **12** ## **W.A.No.337 of 2021** single Judge has considered the submissions of the appellants, with reference to the opinion, Ext.P7 dated 4.2.2021, of AIMS and the oponion of the Medical Board dated 10.2.2021 and accordingly decided that the prayers sought for cannot be granted. Giving due consideration to the pleadings and submissions of the learned counsel for the appellants and the respondents, we find no infirmity in the impugned judgment, warranting interference. Writ appeal is, therefore, dismissed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** /TRUE COPY/ P.A. TO JUDGE