Rengy M. and Justin A. Fernandez v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942** **WP(C).NO.20561 OF 2020(U)** ## **PETITIONERS:** - **1 RENGY M. AGED 40 YEARS W/O. JUSTINE A. FERNANDEZ, REJITHA HOUSE, SANTHIPURAM, NEAR AKSHAYA CENTRE, KADINAMKULAM, PUTHENCURICHI, THIRUVANANTHAPURAM, PIN-695303.** - **2 JUSTIN A.FERNANDEZ, AGED 46 YEARS S/O.ANTONY FERNANDEZ, REJITHA HOUSE, SANTHIPURAM, NEAR AKSHAYA CENTRE, KADINAMKULAM, PUTHENCURICHI, THIRUVANANTHAPURAM, PIN-695303.** **BY ADVS. SRI.R.GOPAN SRI.SHAJIN S.HAMEED** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, NEW DELHI-110001.** - **2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 THE DIRECTOR OF MEDICAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **4 THE SUPERINTENDENT, THIRUVANANTHAPURAM MEDICAL COLLEGE, MEDICAL COLLEGE P.O.,** **WP(C).NO.20561 OF 2020(U)** 2 ## **THIRUVANANTHAPURAM-695011.** **5 THE HEAD OF THE DEPARTMENT, SAT HOSPITAL, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.** ## **BY SRI.R.PRASANTH KUMAR, CGC** ## **OTHER PRESENT:** ## **SMT.PRINCY XAVIER , GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO.20561 OF 2020(U)** 3 ## **J U D G M E N T** The petitioners, who are husband and wife have filed this Writ Petition producing health reports from hospitals including Ext.P2 report and Ext.P7 report dated 23.09.2020 from the SAT Hospital, Thiruvananthapuram and stating the risk involved in continuation of pregnancy of the 1[st] petitioner as congenital anomalies were found. As on 23.09.2020, the gestational age was more than 22 weeks. 2. On 01.10.2020, when the writ petition came up for admission this Court directed the 4[th] respondent to constitute a Medical Board and to examine the 1[st] petitioner and report the condition of the mother and baby through the learned Government Pleader. 3. Smt. Princy Xavier, the learned Government Pleader made available the report on 05.10.2020 reiterating their diagnosis in Ext.P7 report. It is stated that 1[st] petitioner was examined on 02.10.2020 **WP(C).NO.20561 OF 2020(U)** 4 ## by a medical board which was constituted with the following members: - “1. Dr.A.Santhosh Kumar, Superintendent, SAT Hospital, Govt. Medical College, TVM. 2. Dr.Nandini V R, Professor & Head, Department of O&G, SAT Hospital, Govt. Medical College, TVM. 3. Dr.Sreekumari R, Professor, Department of O & G, SAT Hospital, Govt. Medical College, TVM. 4. Dr.Sreelatha S, Associate Professor, Department of O&G, SAT Hospital, Govt. Medical College, TVM. 5. Dr.A.Santhosh Kumar, Professor and HOD, Dept of Pediatrics, SATH, Govt. Medical College, Trivandrum. - 6.Dr.Priyasree J, RMO Gynaec 4. The report of Medical Board reads as follows: ## **Summary of the case** She gives history of gestational diabetes mellitus on insulin, in 3[rd] pregnancy, but her post partum sugars were normal. During this pregnancy, she was referred from A J Hospital at 21 week 1 day gestation with Triple test showing > 1:5 risk for Trisomy 13, 18 and overt diabetes detected by 75 grams OGTT values (139 _/259/_ 230). Her HbA1 C was 7.45% on 19-09-2020. Genetic clinic consultation was done on 15-9-2020, advised as at present she is at 21 weeks 1 day gestation, no active intervention is possible and risk counselled to parents. ## **Opinion of Medical Board** **WP(C).NO.20561 OF 2020(U)** 5 As patient has requested for certificate of opinion of Medical Board showing details of substantial risk of pregnancy to be filed before court for termination of pregnancy, was putforward for Medical Board opinion and decided that, since the risk of congenital anomalies is around 3.4%, for HbA1C < 8% and Trisomy screening risk > 1:5 and period of pregnancy is 24 weeks as on 02-10-2020, the patient needs a court directive for extended period of termination. Hence a Medical Board was constituted. 5. As per the aforesaid opinion of the Medical Board, that the risk of congenital anomalies is involved, the petitioners apprehend physical and mental trauma for the entire family, in the event of continuation of the pregnancy. 6. Learned Government Pleader furnished a further report where it is stated that there is a high chance of chromosomal anomaly in the baby apart from the risk of congenital anomaly following high blood sugar. 7. It is also seen that the first petitioner is having a history of diabetes mellitus. 8. Under Section 3(2) of the Medical Termination of Pregnancy Act, 1971 termination is permissible for **WP(C).NO.20561 OF 2020(U)** 6 pregnancy having duration upto twelve weeks only. However Section 5 of the Act permits the same based on the opinion of the Medical Board Relevant portion of Section 5 reads as follows: **“5.Sections 3 and 4 when not to apply.** —(1) The provisions of Section 4, and so much of the provisions of sub-section (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman”. Xxxx 9. The Apex Court has in similar circumstances, in the judgment in **Sarmishtha Chakrabortty v. Union of India** [(2018) 13 SCC 339], permitted termination of pregnancy when the gestational age was 26 weeks, in view of the recommendation of the Medical Board and the medical report revealing the threat of severe mental injury to the woman and to the multiple complex problems to the child, if born alive, involving complex cardiac corrective surgery stage by stage after birth, in the event of continuation of **WP(C).NO.20561 OF 2020(U)** 7 the pregnancy. In **Meera Santosh Pal v. Union of India** [(2017) 3 SCC 462] also permission was granted when the pregnancy crossed 24 weeks, in view of the medical reports pointing out the risk involved. This Court also in **ABC v. Union of India** [2020(2) KHC 526], permitted termination of pregnancy in order to save the life of the pregnant woman who was in physical as well as mental trauma. In the present case gestational age is over 24 weeks. In the judgment in **Neethu Ravindran v. State of Kerala & others** [2020(3) KHC 157] also this Court permitted termination of pregnancy, taking note of the physical, mental and emotional trauma that would have to be experienced by the entire family in the event of the birth of a child with multiple genetic problems, in similar circumstances taking note of the proposed amendment to the 1971 Act also. In view of the medical report furnished in the present case and in view of the aforesaid judgments, I deem it necessary to permit termination of pregnancy of the **WP(C).NO.20561 OF 2020(U)** 8 ## 1[st] petitioner. 10. However in case the baby is born alive, it has to be taken care of as observed by the Bombay High Court in the judgment **XYZ v. Union of India and Others** [(2019 (3) Bom. CR 400)], as follows : “If a child is born alive, despite attempts at the medical termination of pregnancy, the parents as well as the doctors owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. The extreme vulnerability of such child is reason enough to ensure that everything, which is reasonably possible and feasible in the circumstances, must be offered to such child so that it develops into a healthy child.” Therefore having regard to the urgency involved in the matter there shall be a direction to the 4[th] respondent to see that the termination of pregnancy of 1[st] petitioner is carried out at the earliest point of time, if possible tomorrow itself, by competent doctors under his/her supervision, in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971, its rules and all other rules, regulations and guidelines prescribed for the **WP(C).NO.20561 OF 2020(U)** 9 purpose. In case the child is born alive, during the attempts at medical termination of the pregnancy, the doctors shall ensure that everything, which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose, is offered to such child. This Writ Petition is allowed accordingly. Sd/- ## **P.V.ASHA, JUDGE** AS **WP(C).NO.20561 OF 2020(U)** 10 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **PHOTOCOPY OF THE REFERENCE LETTER DATED 12.9.2020 ISSUED FROM THE A.J.HOSPITAL, KAZHAKUTTOM.** **EXHIBIT P2 PHOTOCOPY OF OUTPATIENT RECORD DATED 14.9.2020 ISSUED BY SAT HOSPITAL, THIRUVANANTHAPURAM.** **EXHIBIT P3 PHOTOCOPY OF THE OPD NO.884 OF SAT HOSPITAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM DATED 15.9.2020.** **EXHIBIT P4 PHOTOCOPY OF THE MEDICAL TEST RESULT OF THE 1ST PETITIONER ISSUED BY DDRC SRL DIAGNOSTIC SERVICE.** - **EXHIBIT P5 PHOTOCOPY OF THE O.P. TICKET DATED 21.9.2020 OF THE SAT HOSPITAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM.** **EXHIBIT P6 PHOTOCOPY OF THE TREATMENT DETAILS OF THE 1ST PETITIONER DATED 22.9.2020 OF THE SAT HOSPITAL.** **EXHIBIT P7** **PHOTOCOPY OF THE DISCHARGE SUMMARY DATED 23.9.2020 ISSUED BY THE SAT HOSPITAL, THIRUVANANTHAPURAM.**