Sangeetha Anand v Union of India & Others

WA.No.1402 OF 2020 -1- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942 WA.No.1402 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 21585/2020(W) OF HIGH COURT OF KERALA DATED 19.10.2020** ## **APPELLANTS/PETITIONERS:** - **1 SANGEETHA ANAND AGED 27 YEARS, WIFE OF ANAND N, RESIDING AT HOUSE NO.240, MIDDLE DIVISION, DEVIKULAM ESTATE, KANNAN DEVAN HILLS, MUNNAR, IDUKKI 685 612.** - **2 ANAND.N, AGED 35 YEARS, SON OF NIRAIPANDI M RESIDING AT HOUSE NO.240, MIDDLE DIVISION, DEVIKULAM ESTATE, KANNAN DEVAN HILLS, MUNNAR, IDUKKI 685 612.** **BY ADVS. SHRI. AKASH S. SMT.A.MEGHA** ## **RESPONDENTS/RESPONDENTS:** - **1 THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF WOMEN AND CHILD DEVELOPMENT, SASTHRI BHAVAN, NEW DELHI 110 001** - **2 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT MINISTRY OF CHILD WELFARE, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001.** - **3 THE DIRECTOR OF HEALTH SERVICES GENERAL HOSPITAL JUNCTION THIRUVANANTHAPURAM 695 035** WA.No.1402 OF 2020 -2- - **4 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE, KUMARAPURAM ROAD CHALAKUZHI, THIRUVANANTHAPURAM 695 015.** - **5 THE DISTRICT MEDICAL OFFICER, IDUKKI DISTRICT, OFFICE OF THE DISTRICT MEDICAL OFFICER, KUYILAMALA, IDUKKI 685 603.** - **6 THE DISTRICT MEDICAL OFFICER, ERNAKULAM DISTRICT, PARK AVE, MARINE DRIVE ERNAKULAM, KERALA** - **7 THE SUPERINTENDENT THE GENERAL HOSPITAL HOSPITAL ROAD, ERNAKULAM 680 011.** - **SRI.P.VIJAYAKUMAR, ASG FOR R1, SRI.SURIN GEORGE IPE, SR. GP FOR R2 TO R7** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1402 OF 2020 -3- ## **J U D G M E N T** ## Dated this the 28[th] day of October, 2020 ## S. Manikumar, CJ Being aggrieved by the dismissal of W.P.(C) No.21585 of 2020 filed for a writ of mandamus directing the respondents therein to allow the 1[st] petitioner / appellant No.1 to undergo Medical Termination of Pregnancy at the earliest and denial of the prayer directing respondents 3 to 5 to take immediate steps to examine the writ 1[st] petitioner / appellant No.1 and to permit her to undergo Medical Termination of Pregnancy, instant writ appeal is filed. 2. Short facts leading to the filing of writ appeal are as under:- The 1[st] appellant is currently in the 31[st] week of pregnancy and the obstetric ultrasonography scan disclosed severe anomalies in the foetus. The revelations from the scan inflicted severe mental stress and agony on the 1[st] appellant and, therefore, she, along with the _de facto_ 2[nd] appellant, approached the writ court. The anomalies in the foetus, which include rare genetic disorders and life threatening health conditions, were confirmed by the Medical Board, formed in accordance with the interim order of the writ court. However, a WA.No.1402 OF 2020 -4- learned Single Judge, by the impugned judgment dated 19.10.2020, dismissed the writ petition, mainly on the ground that the Medical Termination of Pregnancy may end up in life-threatening complications for the 1[st] appellant. According to the appellants, the learned Single Judge has erred in giving undue weight to remote possibilities like sepsis and the commonly prevalent condition of gestational diabetes among pregnant women, over the mental health of the 1[st] appellant. 3. Assailing the correctness of the impugned judgment, appellants have raised the following grounds:- ## “ **(I) MENTAL HEALTH OF THE PREGNANT WOMAN** - A. The mental health of the 1[st] appellant found no mention in the 13page judgment of the learned Single Judge, save for excerpts from reports of the medical board. It may be noted that the report of the medical board dated 17.10.2020 clearly stated that the 1[st] appellant is anxious and then there is a high possibility that it can develop into anxiety disorder and depression if the stress persists in the postpartum period. - B. The Hon'ble Supreme Court of India in **Sonali Kiran Gaekwad v. Union of India** [WP(C) No.928 of 2017] held that "..continuing with pregnancy will cause more mental anguish to the petitioners" and therefore, allowed the medical termination of pregnancy. In the matter, the medical report indicated that the mother's life was not in danger. WA.No.1402 OF 2020 -5- - C. The Hon'ble Supreme Court expressed the view that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution - **[Suchita Srivastava & Anr. v. Chandigarh Administration** (2009) 9 SCC 1) **]** . The Hon'ble Apex Court also added that the 1[st] appellant has a sacrosanct right to have her bodily integrity. - D. The task force constituted by the American Psychological Association found that terminating a wanted pregnancy, especially late in pregnancy, can be associated with negative psychological experiences comparable to those experienced by women who miscarry a wanted pregnancy or experience a still birth or death of a new born, but less severe than those experienced by women who deliver a child with severe abnormality [Major, B. et al. (2008), Report of the APA Task Force on Mental Health and Abortion] - E. **In K.S. Puttaswamy v. Union of India** [2017 (10) SCC 1], Dr. Chandrachud, J. speaking for the majority of the Supreme Court held that life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the State is to safeguard the ability to take decisions – the autonomy of the individual - and not to dictate those decisions. ## **(II) ANOMALIES IN THE FOETUS** - A. The anomalies in the foetus revealed by various scans are summarized as below: WA.No.1402 OF 2020 -6- - i) The thigh bones and all other long bones of the foetus were found to be significantly smaller. The head and abdominal region also were found to be under-developed. The medical board which convened on 14.10.2020 associated these signs with the congenital anomaly, achondroplasia. - ii) The right kidney not imaging in the scan indicates high chances of it being either absent or ectopic. - iii) The medical board that convened on 17.10.2020 observed that even if the foetus is delivered at the end of full term, there may still be a possibility of neuro developmental delay. - iv) The same medical board also observed the risk of the foetus developing intellectual issues is high. - v) The ultrasonography obstetric report dated 08.10.2020 indicates that the foetus has only one umbilical artery. Single Umbilical Artery is a malformation of the umbilical cord associated with other birth defects. 50 percent of such foetus that were antenatally diagnosed have chromosomal or congenital malformations which are typically issues pertaining to heart, nerves and kidney. This condition is also associated with an increased mortality rate of 22 per cent. - B. The medical board opined that the anomalies in the foetus are not life threatening. However, the anomalies found, both jointly and severally indicate serious abnormalities of the foetus. - C. The medical board that convened on 17.10.2020 indicated that if Level-3 care of a new born baby is provided, the complications WA.No.1402 OF 2020 -7- arising from the delivery of the foetus at the 30[th] week of pregnancy can effectively be negated. Further, in numerous occasions, the Hon'ble Supreme Court has allowed women with gestational age above 30 weeks to terminate the pregnancy. ## **(III) RISKS TO THE LIFE OF THE PREGNANT WOMAN IF PROCEDURE IS CARRIED OUT** - A. To the question of the learned Single Judge on whether, having regard to the advanced stage of pregnancy, there is any danger (other than usual danger which arises in spontaneous delivery at the end of full term), if the pregnant mother is permitted to terminate her pregnancy, the medical board highlighted that since the suggested method for the procedure is induction, the prolonged delivery interval can cause sepsis. The medical board, while giving the advice, did not notify the court that such risk would be present in all cases of induced procedures including in deliveries. Though sepsis is a fatal risk, it is a relatively rare condition with mortality of pregnant women being at 1.13 per 1,00,000 pregnant women in 2006-08 (Cantwell, R; et al (2011) "Saving Mothers' Lives: Reviewing maternal deaths to make motherhood safer: 2006-2008". The Eighth Report of the Confidential Enquiries into Maternal Deaths in the United Kingdom. BJOG. 2011;118(Suppl 1):1 203. [PubMed]). - B. The medical board further submitted that the uncontrolled gestational diabetes mellitus of the 1[st] appellant will add to the risk of sepsis. However, gestational diabetes mellitus is a common condition among pregnant women and its prevalence in Asia was WA.No.1402 OF 2020 -8- found to be at 11.3 percent (Lee, K.W., Ching, S.M., Ramachandran, V. et al. (2018). Prevalence and risk factors of gestational diabetes mellitus in Asia: a systematic review and metaanalysis. BMC Pregnancy Childbirth 18, 494). The medical board has rightly suggested that the blood sugar level has to be brought down to normal before the procedure. It is humbly submitted that the condition of gestational diabetes mellitus is a common condition and in such cases, medical procedures including caesarian are not denied to the pregnant women and instead, efforts are made using available techniques in modern medical science to bring the blood sugar level to normal. C. In **Z v. State of Bihar** [(2018) 11 SCC 572], the Hon'ble Supreme Court emphatically reversed the order of the High Court of Bihar stating that the order of the High Court denying permission for the petitioner to undergo medical termination of pregnancy was “completely erroneous". The report of the medical board to the High Court of Bihar indicated that the termination of pregnancy may require major surgical procedure and highlighted the subsequent consequences of bleeding, sepsis and anesthesia hazards. Also, the foetus, if born alive either at this stage or at full term, would have severe developmental issues for which necessary medical care and protection has to be provided instantly. The appellants have submitted before the learned Single Judge regarding their incapacity to afford for such expensive and prolonged treatment. The learned Single Judge, therefore, added in the order dated 19.10.2018 that the appellants are entitled to seek WA.No.1402 OF 2020 -9- benefits under s. 61(1) of the Juvenile Justice Act 2000, if they are otherwise eligible. The provision, which is s.105 of the Juvenile Justice Act 2015 deals with funds created by the State Government for the welfare and rehabilitation of the children dealt under the Act. The benefits of the said provisions can only be availed when the foetus, if born alive, is surrendered by appellants to the Child Welfare Committee as laid down in s. 2(60) of the Juvenile Justice Act 2015. The portion; however, would require further clarity so as to ensure that the foetus receives necessary medical care at the time of birth, if born alive.” 4. On the above grounds, Mr. Akash S., learned counsel for the appellants, made submissions. Perusal of the impugned judgment, shows that the opinion of the Medical Board was sought for and the writ court considered the same, giving due consideration to the merits of the contentions raised in the writ petition. 5. Superintendent of the General Hospital, Ernakulam had submitted the medical report dated 17.10.2020, which is reproduced hereunder:- "1. Continuation of pregnancy as such will not cause any grave physical injury to the mother. If it is continued spontaneous onset of labour can occur as she had a normal vaginal delivery 3 1/2 years back. Moreover her uncontrolled gestational diabetes mellitus can be managed. WA.No.1402 OF 2020 -10- Mental health of mother - since the patient is anxious, the possibility of anxiety disorder and depression is high in the postpartum period if the stress persists. 2. If the baby is delivered at this gestational age i.e. 30 weeks there is every possibility of a neuro developmental delay of the baby. But if level III care of a new born baby is provided, outcome may be modified to such an extent that the baby may become normal. Baby may have immaturity of various systems and possibility of birth asphyxia, intraventricular (brain) haemorrhage, periventricular haemorrhage, hyaline membrane disease affecting lungs, respiratory distress syndrome, patent ductus arteriosus, necrotizing enterocolitis, septicemia, Existing anomalies bilateral short femur, agenesis/ectopic right kidney is not life threatening as such. If the pregnancy is continuing and delivered a term baby, still there is a possibility of neuro developmental delay because of foetal growth retardation. Bilateral short femur, agenesis/ectopic right kidney not a life threatening. Mental status/health of child - An accurate opinion about the mental health of a child cannot be made currently. But the risk of developing intellectual issues (with the skeletal displasias) is high. 3. Pregnancy termination at this preterm stage needs artificial methods to ripen (prepare) cervix (lowermost portion of uterus) for delivering the baby. Since the cervix is not ripe the introduction delivery interval may be prolonged and there is a high chance for sepsis due to this prolonged interval. Added risk of sepsis since uncontrolled GDM in this case. If induction fails, caesarian section to be done for delivering the baby. Anyway if termination is permitted the blood sugar WA.No.1402 OF 2020 -11- level to be brought to normal before induction. It will take a minimum of 10 days. Now her gestational age as per LMP is 30 weeks and there is a high chance of delivering the baby alive. If at all termination is done at this gestational age, it should be conducted at a higher centre like Medical Colleges where Level III newborn care facilities are available. 4. Mechanical methods using Foleys catheter followed by pharmacological agents according to per-vaginal examination findings is suitable in this case. All these are used to ripen cervix and to induce labour pain for effecting a normal vaginal delivery. The possibility of this child being born alive in the process is similar to that in spontaneous onset of labour in the same period of gestation. 5. Nil. ## Members of the Medical Board 1. Dr. C Prethibha, Sr. Consultant O&GN 2. Dr. Anil kumar V.D. Chief Consultant, Pediatrics 3. Dr. Manoj G., Sr. Consultant General Medicine 4. Dr. Manjusha V.R. Consultant, Radio diagnosis 5. Dr. Tony Thomas, Jr. Consultant, Psychiatry" 6. The report states that if the baby is delivered at this gestational age, i.e., 30 weeks, there is every possibility of a neuro developmental delay of the baby and that, the baby may have immaturity of various systems and possibility of birth asphyxia, intraventricular (brain) haemorrhage, periventricular haemorrhage, hyaline membrane disease affecting lungs, WA.No.1402 OF 2020 -12- respiratory distress syndrome, patent ductus arteriosus, necrotizing enterocolitis and septicemia. The report further states that existing anomalies, bilateral short femur, agenesis / ectopic right kidney are not life threatening as such. 7. After considering the medical report dated 17.10.2020, and the fact that if termination of pregnancy is permitted, there is high chance of delivering the baby alive and, in particular, the opinion of the Board that continuation of pregnancy as such would not cause any grave physical injury to the writ 1st petitioner / 1st appellant, writ court by the impugned judgment, declined to grant the reliefs sought for. 8. However, the writ court observed that the petitioners may, after three or four weeks, approach any higher medical centre like Medical Colleges, where Level – 3 newborn care facilities are available, with a request for advanced induced delivery. 9. Writ court also directed that if any such request is made, the authorities in such Medical Colleges may explore the possibility of an advanced induced delivery of the writ petitioners / appellants, at appropriate time and stage, ensuring that the health of the 1[st] appellant and also the safety of the baby intact. WA.No.1402 OF 2020 -13- 10. Though several grounds were raised assailing the correctness of the impugned judgment, we are not inclined to reverse the same for the reason that opinion of the medical board dated 17.10.2020 categorically states that termination of pregnancy at this stage is dangerous to the life of the 1[st] appellant, however, if after the sugar level is reduced, there could be possibility of termination of pregnancy. Medical board has further opined that if at all termination has to be done at this gestational age, it should be conducted at a higher centre like Medical Colleges with Level – 3 newborn care facilities. Medical board has given its opinion on 17.10.2020. As per the opinion, the minimum time required for reduction of blood sugar level was ten days. Time so suggested by the medical board is almost over. 11. Considering the report in its entirety, and other attendant facts and circumstances we are are not inclined to interfere with the judgment of the learned single judge other than to modify the last paragraph of the impugned judgment to the effect that it is open to the petitioners to approach the Medical College, where Level – 3 newborn care facility is available, with a request for advanced induced delivery. In view of the medical report as aforesaid we are of the opinion that the appellants need not wait for three or four weeks, since the date of the impugned judgment, i.e. 19.10.2020. WA.No.1402 OF 2020 -14- Further directions given in the last paragraph of the judgment to the authorities of the Medical College, if they are approached, would remain intact. We also make it clear that all other directions would remain as such. With the above modifications, writ appeal is disposed of. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb