Sandhya Thankachan and Thankachan S/o Parameswaran v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** ## **WP(C) NO. 42821 OF 2022** ## **PETITIONER/S:** 1 SANDHYA THANKACHAN W/O. THANKACHAN, AGED 46 YEARS PUNNATHANATH HOUSE, PLASSANAL P.O, MEENACHIL, KOTTAYAM , PIN - 686579 2 THANKACHAN S/O. PARAMESWARAN AGED 51 YEARS PUNNATHANATH HOUSE, PLASSANAL P.O, MEENACHIL, KOTTAYAM, PIN - 686579 BY ADVS. V.K.PEERMOHAMED KHAN GIRISH KUMAR V.C ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF HEALTH, THIRUVANANTHAPURAM, PIN - 695001 2 PRINCIPAL, GOVERNMENT MEDICAL COLLAGE HOSPITAL GOVERNMENT MEDICAL COLLAGE HOSPITAL, KOTTAYAM, PIN - 686008 3 THE SUPERINDENT, GOVERNMENT MEDICAL COLLAGE HOSPITAL KOTTAYAM, PIN - 686008 ## **OTHER PRESENT:** GP AMMINIKUTTY K; SC M. AJAY **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No. 42821 of 2022 -2- ## **JUDGMENT** Dated this the 5[th] day of January, 2023 Petitioners, a married couple, have undergone continuous infertility treatment and as a result, the first petitioner conceived at the age of 46 years. They have approached this Court seeking permission to terminate the first petitioner's pregnancy which has crossed the gestational age of 26 weeks. The petitioners had to take the difficult decision, prompted by the foetal anomalies detected in the obstetric scan conducted on 05.10.2022 and the subsequent tests. Ext.P1 scan report revealed that the foetus was detected with trisomy 21 (Down Syndrome). This abnormality was confirmed in the subsequent obstetric scan also. On 24.12.2022, the petitioners sought medical advice and were informed about the high risk involved in child birth as the foetus carries multiple anomalies. W.P.(C) No. 42821 of 2022 -3- As the scan reports and medical opinion revealed multiple abnormalities to the foetus, the petitioners decided to get the pregnancy medically terminated. The petitioners' 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 03.01.2023, this Court directed the 3[rd] respondent to constitute a Medical Board and make available the opinion of the experts. Responding to the direction, the 3[rd] respondent has submitted a detailed report, the relevant portion which reads as under; ## _**“Cardiology Opinion:**_ _Sandhya Thankachan 46 yrs, was_ _examined and available investigation_ W.P.(C) No. 42821 of 2022 -4- _reports reviewed. The foetus is diagnosed to have trisomy 21 which carries around 40% risk of congenital heart disease. The antenatal USG has not documented any structural Cardiac abnormality. Hence there is no absolute Cardiac contraindication at present to continue pregnancy._ ## _**Paediatrician Opinion:**_ _Trisomy 21 (Down Syndrome) Is_ _Chromosomal anomaly, with high risk of having developmental delay and intellectual disability in future life However the present scans has not shown any lethal anomaly requiring a termination of pregnancy._ ## _**Psychiatry Opinion:**_ _History noted from Mrs. Sandhya and her husband. She has no past or family history of psychiatric disorders. No history of pervasive mood symptoms or Psychotic symptoms. O/E she is conscious and oriented. Mood is euthymic, no Psychotic symptoms. Her judgement is intact. No signs of active Psychopathology detected at present._ ## _**Radio Diagnosis Opinion.**_ W.P.(C) No. 42821 of 2022 -5- _USG (4/01/2023)-SLIUG 24 weeks 5 days AFI 21cm (Increased) Short Maxilla, Echogenic small Bowel, short humerus-soft tissue markers for Trisomy-21._ ## _**Impression**_ _46yr old G2 P1L1 with h/o infertility treatment the foetus was detected to be 21 (Down Syndrome), as per karyotyping. The foetus also has soft tissue markers positive for Trisomy-21 with Polyhydramnios. The foetus carries risk for anomalies._ _The subject carries normal risk for second trimester MTP complications. However since the gestational age is 26 weeks there is a chance for survival of the premature baby.”_ 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 the feotus was detected with high risk chromosomal anomaly having developmental delay and intellectual disability in future life. In W.P.(C) No. 42821 of 2022 -6- conclusion, it is stated that the foetus carries high risk for anomalies. 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), 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_ W.P.(C) No. 42821 of 2022 -7- _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._ _(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_ W.P.(C) No. 42821 of 2022 -8- _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 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_ W.P.(C) No. 42821 of 2022 -9- _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) 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. ## W.P.(C) No. 42821 of 2022 -10- The medical opinion being conclusive to the effect that the foetus is having severe abnormalities, the petitioner's prayer is liable to be allowed. I am also 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 first petitioner is permitted to get her pregnancy terminated at a Government Hospital. **==> picture [340 x 13] intentionally omitted <==** Superintendent of the hospital shall take immediate measures for constituting a medical team for conducting the procedure. (iii) The petitioners shall give written consent for the procedure and W.P.(C) No. 42821 of 2022 **==> picture [23 x 8] intentionally omitted <==** shall also file an affidavit undertaking to provide necessary funds for giving palliative care to the baby, if the baby survive. (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 petitioners. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No. 42821 of 2022 -12- ## **APPENDIX OF WP(C) 42821/2022** PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE REPORT DATED 05.10.2022 Exhibit-P1(a) TRUE COPY OF THE REPORT DATED 10.10.2022 Exhibit-P2 TRUE COPY OF THE OBSTETRIC SCANNING REPORT DATED 01.12.2022 Exhibit-P3 TRUE COPY OF THE PRESCRIPTION AND REFERENCE LETTER BY DOCTOR DEEPAPRABHA N.M. DATED 24.12.2022 Exhibit-P4 TRUE COPY OF THE REFERRAL LETTER AND FINDING OF THE MEDICAL COLLEGE HOSPITAL OIV UNIT DATED 24.12.2022