Sameera Tahsin v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944** ## **WP(C) NO. 40637 OF 2022** ## **PETITIONER/S:** SAMEERA THAHSIN AGED 24 YEARS W/O MINRZAN ABDUL LATIF, CHETTIPARAMBIL HOUSE, KAIRALI STREET, ASOKA ROAD, KALOOR, ERNAKULAM, KOCHI, PIN-682017. BY ADV D.ANIL KUMAR ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF WOMEN AND CHILD DEVELOPMENT, SASTHRI BHAVAN, NEW DELHI, PIN110001. 2 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 3 DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE P O, KUMARAPURAM ROAD, CHALAKKUZHI, THIRUVANANTHAPURAM, PIN-695011. 4 THE SUPERINTENDENT GOVERNMENT HOSPITAL, ERNAKULAM, PIN-682028. 5 THE SUPERINTENDENT MEDICAL COLLEGE HOSPITAL, KALAMASSERY, KOCHI, PIN683503. ## **OTHER PRESENT:** DSGI S.MANU; GP P.S.APPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.40637 of 2022 -2- ## **JUDGMENT** Dated this the 19[th] day of December, 2022 The petitioner, a married woman aged 24 years, has approached this Court seeking permission to terminate her pregnancy, which has crossed the gestational age of 28 weeks. The petitioner had to take the difficult decision, prompted by the foetal anomalies detected in the ultrasound (III trimester) scan conducted on 08.12.2022 and the subsequent tests. The ultrasound scan report revealed acqueductal stenosis with dilated third and lateral ventricle. Thereupon, the petitioner underwent a neurosonogram and obtained Ext.P4 scan report which revealed that the foetus is suffering from “intra-ventricular hemorrhage Grade IV”, a rare and serious medical condition. Based on medical opinion, the petitioner conducted a Fetal MRI Test and obtained Ext.P5 test report, which W.P.(C) No.40637 of 2022 -3- confirmed intra-ventricular hemorrhage Grade 3-4 and also revealed multicystic ancephalo malaciasequelac of a diffuse hypoxic of ischemic insult. As the repeated tests and scan reports revealed multiple abnormalities to the foetus, the petitioner decided to get her pregnancy medically terminated. The petitioner's predicament is that in the absence of a Medical Board constituted in accordance with Section 3(2C) of the Medical Termination of Pregnancy (Amendment) Act, 2021, no medical practitioner will conduct the procedure. Hence, this writ petition. 2. When the writ petition came up for admission on 04.12.2022, this Court directed the 5[th] respondent to constitute a Medical Board and make available the opinion of the experts. Responding to the direction, the 5[th] respondent has submitted a detailed report, the relevant portion which reads as under; W.P.(C) No.40637 of 2022 -4- _**“2. Opinion of Pediatrician,**_ ## _**Dr.P.G.Hariprasad, Associate Professor**_ ## _**GMC-Ernakulam**_ _As the fetus is having significant lesion as shown above the baby is most likely to have permanent sequele in the form of quadraplegic cerebral palsy_ _Baby is prone to develop varying complications like seizures, feeding problems, global developmental delay etc. Even though the quality of life is likely to be very poor, the quantity of life cannot be commented. Baby may live for months, sometimes for years. There is no law as of now in India for Euthanasia. However we can offer supportive care for baby accepting the basic principles of palliative care. The family should give written consent that they are willing to take care of their baby (if the baby survives). The family can also give an advance care plan._ _In advance care plan they can provide the written consent for withholding from ventilator If the baby developes any complications endangering life. In such a situation they can opt for " end of life care" which is very well accepted by world Health Organisation._ _However court direction is needed for implementing end of life care for this_ W.P.(C) No.40637 of 2022 -5- _baby as there is no existing law for the same in India at present._ _All the above details has been explained in detail to both parents and both grandparents._ ## _**3. Opinion of Gynaecologist, Dr.Parvathy Deth, Assistant professor O & G, GMC - Ernakulam**_ _Explained in detail to the patient, husband, her parents and in laws about the complications of pre term delivery including prolonged induction, infection, failed induction, chance of hysterotomy, bleeding, chance of hysterectomy anaesthesia complications, prolonged hospitalisation including post operative infections and future risk of scar rupture in future pregnancy. Patient and bystanders ready to take risk and proceed with termination of pregnancy._ ## _**Opinion of Radiologist, Dr. Reji Rajan**_ ## _**Varghese Assistant professor,, GMC -**_ ## _**Ernakulam**_ _Going to the foetal ultrasound report dated 08/12/2022 done at Amrita Institute of Medical Science the baby is having Bilateral ventricolomegly with echogenic span both lateral ventricles with extension to the adjacent parenchyma - Likely Intraventricular Haemorrhage_ W.P.(C) No.40637 of 2022 -6- _thinned out cortical mantle":_ _Suggesting damage to the foetal brain. This Ultrasound finding is further supported by foetal MRI taken on 09/12/2022._ _5._ _**Opinion of Psychiatrist, Dr. Lekshmy Gupthan Associate professor,, GMC -**_ ## _**Ernakulam**_ _Mrs. Thahasin was evaluated as part of the Medical board evaluation. She reports apprehension regarding continuation of pregnancy in view of the foetal anomalies detected. This has caused considerable mental trauma. No other stressors. On examination she is conscious and oriented. Her psychomotor activity and talk is normal. On evaluation of thought she has worries and apprehension regarding continuation of Pregnancy and expresses desire to terminate pregnancy. She has depressed mood and appropriate affect. No Psychotic features. Higher mental functions are intact._ _Impression - Adjustment disorder with brief depressive reaction._ _She was counselled by the Medical board. She has no ambivalence regarding termination of pregnancy._ _**Conclusion: The termination of pregnancy may be done if the parents are willing to accept the risk of the fetus and mother as**_ W.P.(C) No.40637 of 2022 -7- ## _**explained in detail above.”**_ 3. From a reading of the report, it is evident that the foetus is suffering from multiple abnormalities, some of which are grave in nature. The experts have opined that if the child is born, the quality of life is likely to be very poor and the baby is prone to develop varying complications like siezures, feeding problems, global developmental delay etc. In conclusion, it is stated that the termination of pregnancy may be done if the parents are willing to accept the risk of the foetus and mother. In the light of the above opinion, it will be appropriate to refer to Section 3 of the Medical Termination of Pregnancy Act, 1971; ## “ _**3. When pregnancies may be terminated by**_ _**registered medical practitioners** .—(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),_ W.P.(C) No.40637 of 2022 -8- _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_ W.P.(C) No.40637 of 2022 -9- _anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman._ _(2-A) 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._ _(2-B) 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._ _(2-C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board 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._ _(2-D) 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_ W.P.(C) No.40637 of 2022 -10- _notified in the Official Gazette by the State Government or Union territory, as the case may be.]_ _(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (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.”_ On a Careful scrutiny of Section 3, with particular reference to sub-section 2 and Explanation I thereunder, it can be seen that medical termination of pregnancy can be permitted up to 24 weeks, if continuance of the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health. An exception is carved out by Clause(2-B) ## W.P.(C) No.40637 of 2022 -11- of Subsection 2 of Section 3, as per which provisions of sub-section (2) relating to the length of pregnancy shall not apply to termination of pregnancy if such termination is necessitated by the diagnosis of any substantial foetal abnormalities by a Medical Board. The medical opinion being conclusive to the effect that the foetus is having severe abnormalities, the petitioner's prayer is liable to be allowed. For arriving at such decision, I am guided by the well considered judgment of the Delhi High Court in _**Mrs.X v. GNCTD and another**_ ## _**[2022 SCC OnLine Del 4274**_ **]** . In the result, the writ petition is allowed as under; (i) The petitioner is permitted to get her pregnancy terminated at a Government Hospital. (ii) On production of this order, the Superintendent of the hospital shall -12- ## W.P.(C) No.40637 of 2022 take immediate measures for constituting a medical team for conducting the procedure. (iii) The petitioner and her husband shall give written consent for the procedure and shall also file an affidavit undertaking to provide the funds necessary for giving palliative care to the baby, if the baby survives. (iv) If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment, the expenses for which shall be met by the petitioner and her husband. **Sd/-** ## **V.G.ARUN** ## **JUDGE** Scl/ W.P.(C) No.40637 of 2022 -13- The following paragraphs are added after the direction iv in the judgment dated 19.12.2022 in W.P.(C) No.40637/2022 (D) as per order dated 21.12.2022 in I.A.No.1/2022 in W.P.(C) No.40637/2022. “The petitioner shall be permitted to undergo medical termination of pregnancy at Lakshmi Hospital, Diwans Road, Ernakulam, if the hospital is an approved medical facility under Section 4 of the Medical Termination of Pregnancy Act. If not, the petitioner shall be permitted to undergo medical termination of pregnancy at any other approved medical facility of her choice. Needless to say that the procedure shall be conducted under the supervision of a properly constituted medical team.” **==> picture [66 x 10] intentionally omitted <==** Joint Registrar W.P.(C) No.40637 of 2022 -14- ## **APPENDIX OF WP(C) 40637/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REPORT DATED 9/9/2022 ISSUED BY RENAI MEDICITY, PALARIVATTOM, KOCHI. Exhibit P2 TRUE COPY OF THE REPORT DATED 7.10.2022 ISSUED FROM RENAI MEDICITY, PALARIVATTOM. Exhibit P3 TRUE COPY OF THE SCAN REPORT DATED 8.12.2022 FROM RENAI MEDICITY HOSPITAL, PALARIVATTOM. Exhibit P3 TRUE COPY OF THE SCAN REPORT DATED 8.12.2022 FROM RENAI MEDICITY HOSPITAL, PALARIVATTOM. Exhibit P4 TRUE COPY OF THE REPORT OF AIMS, KOCHI DATED 8.12.2022 OF TARGETTED NEURO SONOGRAM PERFORMED ON THE PETITIONER. Exhibit P5 TRUE COPY OF THE REPORT DATED 9.12.2022 ISSUED BY AIMS, KOCHI. Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 6.7.2022 IN WPC NO.16607/2022 OF THE DELHI HIGH COURT.