Remya T. and Deenadayal K. v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 18[TH] DAY OF JANUARY 2023 / 28TH POUSHA, 1944** **WP(C) NO. 1328 OF 2023** ## **PETITIONER/S:** 1 REMYA T. AGED 30 YEARS DAUGHTER OF DEVADASAN T, RESIDING AT 'THEKKETHODI', ARAKKINAR PO, KOZHIKODE , PIN - 673028 2 DEENADAYAL K AGED 38 YEARS SON OF SUNDARAN, RESIDING AT 'KELAPPANTAKATH', MARAD BEACH, ARAKKINAR PO, KOZHIKODE , PIN - 673028 BY ADVS. AKASH S. GIRISH KUMAR M S V.S.VARALEKSHMI DEVIKA JAYARAJ ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF WOMEN AND CHILD DEVELOPMENT, SASTHRI BHAVAN, NEW DELHI , PIN - 110001 2 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF CHILD WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM , PIN - 695001 3 THE DIRECTOR OF HEALTH SERVICES GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM , PIN - 695035 4 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKUZHI, THIRUVANANTHAPURAM , PIN - 695015 W.P.(C) No.1328 of 2023 -2- 5 THE SUPERINTENDENT GOVERNMENT MEDICAL COLLEGE, 17, MAVOOR ROAD, KOZHIKODE , PIN - 673008 ## **OTHER PRESENT:** SRI MANU S **THIS WRIT PETITION (CIVIL) HAVING BEING FINALLY HEARD ON 17.01.2023, THE COURT ON 18.01.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.1328 of 2023 -3- ## **JUDGMENT** Dated this the 18[th] day of January, 2023 The first petitioner, a married woman, whose pregnancy has crossed the gestational age of 36 weeks, is before this Court seeking permission for medical termination of her pregnancy. According to the petitioners, after the first petitioner’s pregnancy was confirmed, they used to visit the Doctors and undergo scans as per schedule. No major anomalies were spotted in the obstetrics scan conducted on the 20th and 30th weeks of gestation. But to the petitioners’ dismay, the ultrasound scan conducted on 10.01.2023 revealed that the growth of the foetus' head did not correspond to the rest of the body. Thereupon, the first petitioner underwent obstetrics and foetal doppler scans, which further revealed that the foetus was suffering from microcephaly, a condition where ## W.P.(C) No.1328 of 2023 -4- the head of the foetus is much smaller than the rest of the body, resulting in the brain development being arrested. In view of the foetal anomalies, the petitioners decided to terminate the pregnancy, but are unable to do so in view of the time maximum term of 24 weeks prescribed in the Medical Termination of Pregnancy Act, 1971 and the absence of a Medical Board as contemplated under Section 3(2C) of the Medical Termination of Pregnancy (Amendment) Act, 2021. Hence, this writ petition. 2. When the writ petition came up for admission 13.01.2023, the Superintendent, Government Medical College, Kozhikode was directed to constitute a Medical Board for examining the first petitioner and the foetus and a conclusive medical opinion regarding the physical and mental status of the mother and the abnormalities, if any, of the foetus. Accordingly, the first petitioner was examined by W.P.(C) No.1328 of 2023 -5- the Medical Board examined and the following report submitted; “ _She is a 2nd gravida, previous Caesarian with 36 weeks pregnancy, Fetus is diagnosed to have microcephaly in USG done on 10-12023, 11-1-2023 and 16-1-2023._ _These are the conclusions made by the Medical Board._ _1) Pregnancy was uncomplicated and no anomaly was detected till 35 weeks of_ _gestation which excludes a major malformation /anomaly in the fetus. Hence there is a very high possibility of having a live, viable baby._ _2) Mode of termination after 36 weeks requires a cesarean section, as she has a history of previous caesarian section._ _3) We cannot deny routine care, including resuscitation and ICU, care for the newborn baby._ _4) Moreover extra morbidities associated with preterm delivery in both mother and baby can be avoided, if termination is planned at 38 weeks (as per the usual protocol)_ _5) According to the present clinical_ W.P.(C) No.1328 of 2023 -6- _examination of the mother, continuation of pregnancy will not affect the physical and mental status, if pregnancy is continued for 2 more weeks._ _6) The long term prognosis of the newborn can be predicted only after delivery, follow-up and evaluation.”_ 3. Learned Counsel for the petitioner contended that a woman's right to make reproductive choice and the liberty of the mother to terminate the pregnancy was declared to be a dimension of her personal liberty in ## _**Suchita Srivastava and another v. Chandigarh**_ _**Administration [(2009) 9 SCC 1])**_ and was reiterated in _**Mrs.X v. GNCTD and another [2022**_ _**SCC OnLine Del 4274**_ **]** . It is contended that going by Section 3(2B) of the Act, as amended in 2021, the pregnancy can be terminated even beyond the maximum gestational age prescribed under the Act, if the termination is necessitated by the diagnosis of any of the substantial foetal anomalies by a Medical Board. ## W.P.(C) No.1328 of 2023 -7- 4. Learned Government Pleader opposed the prayer, pointing out that the Medical Board's opinion was against termination and the pregnancy cannot be terminated based on an apprehension that the new born baby may have morbidities. 5. A careful scrutiny of the Medical Board's report reveals that the Board has observed that continuation of the pregnancy for two more weeks will not affect the physical and mental status of the mother. It is opined that the pregnancy was uncomplicated and no anomaly was detected till 35 weeks of gestation which excludes a major malformation/anomaly in the fetus. According to the Board, there is a very high possibility of having a live, viable baby. Considering that the mode of termination after 36 weeks requires caesarian section, it is opined that continuing pregnancy till 38 weeks will be a better option than termination by a caesarian section at 36 weeks. Thus, the medical opinion is definitely W.P.(C) No.1328 of 2023 -8- against grant of permission for termination of pregnancy. 6. No doubt, the Apex Court has declared a woman's right to make reproductive choice to be a dimension of her personal liberty in _**Suchita Srivastava**_ (supra), but the question is whether such liberty can transgress the restrictions/prohibition under the Medical Termination of Pregnancy Act, that too when the experts have given a conclusive opinion that continuance of the pregnancy is better than premature termination. Yet another consideration is that the gestational age having crossed 36 weeks, there is every possibility of having a live viable baby. Even going by Section 3(2B), termination beyond the maximum period can be permitted only if the Medical Board points out substantial foetal anomalies. As no anomaly was detected till 36 weeks of gestation, the Board has excluded major malformation, anomaly in the ## W.P.(C) No.1328 of 2023 -9- foetus. It is also stated that the long term prognosis of the newborn can be predicted only after delivery, follow-up and evaluation. The opinion not being definite about any substantial anomaly to the foetus and there being no threat to physical and mental status of the mother if the pregnancy is continued for two more weeks, this court cannot permit medical termination of the pregnancy, particularly when the opinion is that the extra morbidities associated with preterm delivery in both mother and baby can be avoided if the termination is planned as per usual protocol. The above reasons compel me to decline the prayer for termination of pregnancy. **==> picture [381 x 12] intentionally omitted <==** dismissed. Sd/- ## **V.G.ARUN** ## **JUDGE** Scl/ W.P.(C) No.1328 of 2023 -10- ## **APPENDIX OF WP(C) 1328/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AADHAAR IDENTITY CARD OF THE 1ST PETITIONER Exhibit P2 TRUE COPY OF THE AADHAAR IDENTITY CARD OF THE 2ND PETITIONER Exhibit P3 TRUE COPY OF THE 2/3 TRIMESTER OBSTETRICS SCAN REPORT DATED 11.01.2023 PERFORMED AT THE BABY MEMORIAL HOSPITAL, KOZHIKODE Exhibit P4 TRUE COPY OF THE FETAL DOPPLER SCAN REPORT DATED 11.01.2023 PERFORMED AT THE BABY MEMORIAL HOSPITAL, KOZHIKODE