Emy K Kurian v. State of Kerala and The Superintendent, Government TD Medical College Hospital, Vandaman, Alappuzha

``` WP(C) NO. 12884 OF 2025 1 ``` ``` 2025:KER:29164 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 ``` ``` WP(C) NO. 12884 OF 2025 ``` ## **`PETITIONERS:`** ``` 1EMY K KURIAN AGED 31 YEARS W/O.SHOBIN THOMAS, KALLUVILAYIL, CHELLIKUZHIK PO, PATTAZHY, VAKAKKEKARA, KOLLAM, KERALA, PIN - 691556 ``` - **`2 SHOBIN THOMAS AGED 35 YEARS S/O. K.C.THOMAS, KURISUMOOTTIL THEKKATHIL, KADAVOOR, MAVELIKARA, KARIPUZHA, KANNAMAGALAM, THATTARAMBALAM, ALAPPUZHA DISTRICT, PIN - 690103`** ``` BY ADVS. SRI.ALEX K.JOHN SMT.JILCY JACOB SRI.NINAN THOMAS SRI.GEGO GEORGE ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH DEPARTMENT, ROOM NO. 603, 6TH FLOOR, ANNEXE I, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 690001 ``` - **`2 THE SUPERINTENDENT GOVERNMENT T.D. MEDICAL COLLEGE HOSPITAL VANDANAM, ALAPPUZHA, DISTRICT, PIN - 688005`** ## **`BY SMT.VIDYA KURIAKOSE, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 12884 OF 2025 2 ``` ``` 2025:KER:29164 ``` **==> picture [57 x 57] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 04[th] day of April, 2025** The 1[st] petitioner is the wife of the 2[nd] petitioner. The 1[st] petitioner is in the 24[th] week of gestation. The foetus has substantial abnormalities. If the child is born, it would suffer from neurological problems. The 1[st] petitioner’s life also would be at risk. In view of the stringent provisions of the Medical Termination of Pregnancy Act, 1971 (‘Act’, in short) and as the gestation has reached 24 weeks, the competent authority will not permit the termination of pregnancy unless directed by this Court. Therefore, the 2[nd] respondent may be directed to terminate the 1[st] petitioner’s pregnancy. Hence, the writ petition. 2. When the writ petition came up for consideration on 28.03.2025, this Court had directed the 1[st] petitioner to appear before the Medical Board of the 2[nd] respondent. ``` WP(C) NO. 12884 OF 2025 3 ``` **==> picture [57 x 57] intentionally omitted <==** `2025:KER:29164` 3. In compliance with the directions of this Court, a Medical Board comprising of six doctors of the 2[nd] respondent had examined the 1[st] petitioner on 29.03.2025. The Medical Board has opined that the gestation is 28 weeks and the foetus has agenesis of corpus callosum. The 1[st] petitioner also has a cervical stitch in situ. The Pediatrician has opined that it is a non lethal anomaly with survival chances of 60%, if the termination is done at 28 weeks. Therefore, the Board has unanimously recommended not to terminate the pregnancy. 4. The termination of pregnancy is governed by the Medical Termination of Pregnancy Act, 1971 (‘Act’, in short) and the rules framed thereunder. The Act is a progressive legislation that regulates how pregnancies can be terminated. 5. Section 3 of the Act spells out the conditions to be satisfied to terminate a pregnancy, which reads as follows: " **S.3 - When pregnancies may be terminated by registered medical practitioners.** — ``` WP(C) NO. 12884 OF 2025 4 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:29164 ``` (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may ― be terminated by a registered medical practitioner, (a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner, is or (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty - four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, ― formed in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. **Explanation 1** .―For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. **Explanation 2** . ― For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act. (2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board ``` WP(C) NO. 12884 OF 2025 5 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:29164 ``` to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. (2D) The Medical Board shall consist of the following, namely: (a) ― a Gynaecologist; (b) a Paediatrician; (c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in subsection (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment. (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman." ## 6. It is also necessary to refer to the Medical Termination of Pregnancy Rules, 2003, which reads as ## follows: “3A. Powers and functions of Medical Board.—For the purposes of section 3,— (a) the powers of the Medical Board shall be the following, namely:- (i) to allow or deny termination of pregnancy beyond twenty-four weeks of gestation period under sub-section (2B) of the said section only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped”; ``` WP(C) NO. 12884 OF 2025 6 ``` ``` 2025:KER:29164 ``` **==> picture [57 x 57] intentionally omitted <==** 7. The position of law can therefore be summarised thus: **==> picture [381 x 286] intentionally omitted <==** 8. In addition to the above statutory safeguards, the Ministry of Health and Family Welfare, Government of India, has issued a comprehensive 'Guidance Note for Medical Boards for Termination of Pregnancy Beyond 20 weeks of Gestation', dated 14[th] August 2017. The Note stipulates that it is the responsibility of the Medical Board to ascertain whether ``` WP(C) NO. 12884 OF 2025 7 ``` **==> picture [57 x 57] intentionally omitted <==** `2025:KER:29164` the fetal abnormality is substantial enough to qualify as either incompatible with life or associated with significant morbidity or mortality of the child if born. The determination of substantial fetal abnormalities should be based on a thorough review of the patient's medical records, and the Medical Board should conduct additional investigations as may be necessary and should base its decision on concrete medical evidence and expert evaluations, including reviewing the available documents and performing additional diagnostic tests to confirm the presence and extent of congenital abnormalities. The objective of the Note is to ensure that the decision to terminate the pregnancy is made with utmost care and consideration of the potential outcomes and quality of life of the child. 9. In **Suchita Srivastava v. Chandigarh Admn.** [(2009) 9 SCC 1], a three-judge Bench of the Hon’ble Supreme Court, has held that the right to make reproductive choices is a facet of Article 21 of the ``` WP(C) NO. 12884 OF 2025 8 ``` **==> picture [57 x 57] intentionally omitted <==** `2025:KER:29164` Constitution and that the consent of the pregnant person in matters of reproductive choices and abortion is paramount. 10. In **XYZ v. State of Gujarat** (2023 SCC Online SC 1573), the Hon’ble Supreme Court held that the Medical Board or the High Court cannot refuse termination of pregnancy merely on the ground that the gestational age is above the statutory prescription. It is held as follows: “19. The whole object of preferring a Writ Petition under Article 226 of the Constitution of India is to engage with the extraordinary discretionary jurisdiction of the High Court in exercise of its constitutional power. Such a power is vested with the constitutional courts and discretion has to be exercised judiciously and having regard to the facts of the case and by taking into consideration the relevant facts while leaving out irrelevant considerations and not vice versa.” ## 11. The Hon’ble Supreme Court in **A v. State** ## **of Maharashtra** [(2024) 6 SCC 327] has held as under: “ 28. The powers vested under the Constitution in the High Court and this Court allow them to enforce fundamental rights guaranteed under Part III of the Constitution. When a person approaches the court for permission to terminate a pregnancy, the courts apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In doing so the court relies on the opinion of the Medical Board ``` WP(C) NO. 12884 OF 2025 9 ``` **==> picture [57 x 57] intentionally omitted <==** `2025:KER:29164` constituted under the MTP Act for their medical expertise. The court would thereafter apply their judicial mind to the opinion of the Medical Board. Therefore, the Medical Board cannot merely state that the grounds under Section 3(2-B) of the MTP Act are not met. The exercise of the jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a Medical Board must examine the pregnant person and opine on the aspect of the risk to their physical and mental health. 29. The MTP Act has removed the restriction on the length of the pregnancy for termination in only two instances. Section 5 of the MTP Act prescribes that a pregnancy may be terminated, regardless of the gestational age, if the medical practitioner is of the opinion formed in good faith that the termination is immediately necessary to save the life of the pregnant person. Section 3(2-B) of the Act stipulates that no limit shall apply on the length of the pregnancy for terminating a foetus with substantial abnormalities. The legislation has made a value judgment in Section 3(2-B) of the Act, that a substantially abnormal foetus would be more injurious to the mental and physical health of a woman than any other circumstance. In this case, the circumstance against which the provision is comparable is rape of a minor. To deny the same enabling provision of the law would appear prima facie unreasonable and arbitrary. The value judgment of the legislation does not appear to be based on scientific parameters but rather on a notion that a substantially abnormal foetus will inflict the most aggravated form of injury to the pregnant person…….. *** *** *** 32. This highlights the need for giving primacy to the fundamental rights to reproductive autonomy, dignity and privacy of the pregnant person by the Medical Board and the courts. The delays caused by a change in the opinion of the Medical Board or the procedures of the court must not frustrate the fundamental rights of pregnant people. We therefore hold that the Medical Board evaluating a pregnant person with a gestational age above twenty-four weeks must opine on the physical and mental health of the person by furnishing full details to the court”. ``` WP(C) NO. 12884 OF 2025 10 ``` **==> picture [57 x 57] intentionally omitted <==** `2025:KER:29164` 12. In the case at hand, the Medical Board has found the foetus has serious abnormality. However, since there is a chance of the baby being born alive, the Board has unanimously recommended not to terminated the pregnancy at this stage. 13. Recently in **xxx v. Union of India** [2025 KHC On Line 1634], a Division Bench of this Court has categorically held that the length of pregnancy is not a ground to deny termination of pregnancy, if the Medical Board forms an opinion that there are substantial foetal abnormalities. Accordingly, this Court permitted the iatrogenic foetal demise of the fetus. In light of the facts and circumstances of the case, and emphatic declaration of law, I allow the writ petition in the following manner: (i) The 2[nd] respondent is directed to issue a certificate to the 1[st] petitioner certifying that foetus has abnormalities. ``` WP(C) NO. 12884 OF 2025 11 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:29164 ``` (ii) The 1[st] petitioner is permitted to approach any hospital on her choice and undergo medical termination of pregnancy, including an iatrogenic foetal demise of the fetus, at her own risk and cost. The writ petition is ordered accordingly. **C.S.DIAS JUDGE** NAB ``` WP(C) NO. 12884 OF 2025 12 ``` ``` 2025:KER:29164 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`APPENDIX OF WP(C) 12884/2025`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1THE TRUE COPY OF THE REFERRED LETTER ISSUED BY THE SANJEEVANI HOSPITAL DATED NIL ``` ``` EXHIBIT P2THE TRUE COPY OF THE CLINICAL CHART ISSUED BY THE MEDICAL COLLEGE VANDANAM, ALAPPUZHA DATED 06.01.2025 ```