Soniya L. and Joseph Clement v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 23RD DAY OF OCTOBER 2020 / 1ST KARTHIKA, 1942** ## **WP(C).NO.22426 OF 2020(C)** ## **PETITIONERS:** - **1 SONIYA L., AGED 23 YEARS W/O. JOSEPH CELMENT, RESIDING AT KARIMPALLYKARAVEEDU, KOTTAPPURAM P.O., VIZHINJAM, THIRUVANANTHAPURAM695521.** - **2 JOSEPH CLEMENT, AGED 31 YEARS S/O. CELMENT, RESIDING AT KARIMPALLYKARAVEEDU, KOTTAPPURAM P.O., VIZHINJAM, THIRUVANANTHAPURAM-695521.** **BY ADVS. SRI.K.K.VIJAYAN SRI.K.R.RAJESHKUMAR SRI.G.RANJU MOHAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF MEDICAL EDUCATION, STATE OF KERALA, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.** - **3 THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.** - **4 THE HEAD OF DEPARTMENT, SREE AVITTAM THIRUNAL HOSPITAL, MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.** ## **OTHER PRESENT:** **SMT.VINITHA.B, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO.22426 OF 2020(C)** 2 ## **J U D G M E N T** The petitioners are husband and wife who got married on 14.09.2017. They have filed this Writ Petition producing Exts.P1 to P4 medical records in respect of the 1[st] petitioner and seeking a direction to respondents 1 to 4 to carry out medical termination of pregnancy of the 1[st] petitioner. Ext.P3 report dated 15.10.2020 from the SAT Hospital, Thiruvananthapuram, would show abnormal features in the fetus. As on 15.10.2020, the gestational age was found to be of 22 weeks. 2. When the matter came up for admission on 20.10.2020, this Court passed an interim order directing the 4[th] respondent to constitute a Medical Board and to examine the 1[st] petitioner and to report the matter through the learned Government Pleader. 3. The medical board was accordingly constituted and the report is made available to this Court by Smt. B. Vinitha, the learned Government **WP(C).NO.22426 OF 2020(C)** 3 Pleader. It is stated that the 1[st] petitioner was examined on 22.10.2020 by a medical Board, ## constituted with the following members : **==> picture [37 x 181] intentionally omitted <==** 1. Dr.A.Santhosh Kumar, Superintendent, SATH, Govt. Medical College, Trivandrum. 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.Aswathy, Department of Neonatology - 6.Dr.Pio James, Department of Fetal Medicine - 7.Dr.Priyasree J, RMO,Gynaecology 4. The report of Medical Board reads as follows: ## **Report of the Medical Board** Mrs. Soniya L 23 years w _/_ o Joseph Clement residing at Vizhinjam referred from Al Arif hospital, Ambalathara where she was having her antenatal check up. She is a second gravida having a live child 1 1/2 old with LMP on 11.05.2020 and 23 weeks of period of gestation on 22.10.2020 as per the said LMP. She was undergoing antenatal care from Al-Arif Hospital. She underwent anomalies scan on 13.10.2020 at 21 weeks 5 days which showed several anomalies of limb and spine and she was referred to SATH for medical termination of pregnancy. Repeat detailed targeted anomaly scan was done on 15.10.2020 at Hindlabs Diagnostic Centre and specialty clinic, Thiruvananthapuram and the report revealed all long bones of the fetus appeared to be curved, and fall below the first centile for the gestational age with normal echo texture, thorax appears narrow and bell shaped, ribes appeared short, fetal facial profile shows frontal bossing and **WP(C).NO.22426 OF 2020(C)** 4 flattened nose, fingers appear short, platyspondily of spine with abnormal curvature of the sacral spine with abnormal curvature of the sacral spine, both feet show CTEV(Congenital Talipes Equinovarux) increased NFT (Nuchal Fold Thickness). All these features are suggestive of lethal skeletal dysplasia, possibly thanatophoric dysplasia. ## **Opinion of Medical Board** Poór prognosis was explained by both neonatologist and fetal medicine specialist. Since she has crossed 20 weeks which is the legal limit of termination of pregnancy the Honourable Court has to give a directive for medical termination of pregnancy. 5. In view of the above circumstances, having detected grave abnormalities in the fetus which has potential harmful psychological consequences to the mother and child in the event of continuation of pregnancy and recommendation for termination of pregnancy, I deem it necessary to permit the petitioners to get the pregnancy of 1[st] petitioner terminated, at the earliest possible point of time. 6. Eventhough Section 3(2) of the Medical Termination of Pregnancy Act, 1971 permits termination of pregnancy with a duration upto twelve weeks only, Section 5 permits the same when the medical board find that the termination is necessary **WP(C).NO.22426 OF 2020(C)** 5 to save the life of pregnant mother. Relevant portion of Section 5 of the Act 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 subsection (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 7. 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 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 the pregnancy. In **Meera Santosh Pal v. Union of India** [(2017) 3 SCC 462] also permission was granted when **WP(C).NO.22426 OF 2020(C)** 6 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 judgment reported in **Neethu Narendran v State of Kerala** [2020 (3) KHC 157] also this Court permitted termination of pregnancy when gestational age crossed 23 weeks. In view of the medical report furnished in the present case, I deem it necessary to permit termination of pregnancy of the 1[st] petitioner. Therefore having regard to the urgency involved in the matter, there shall be a direction to the Superintendent of SAT Hospital, Thiruvananthapuram, and the 4th respondent to see that the termination of pregnancy of 1st petitioner is carried out at the earliest point of time, if possible today itself, by competent doctors under their supervision, in **WP(C).NO.22426 OF 2020(C)** 7 accordance with the provisions of the Medical Termination of Pregnancy Act, 1971, its rules and all other rules, regulations and guidelines prescribed for the purpose. Accordingly the Writ Petition is allowed. Sd/- **P.V.ASHA, JUDGE** AS **WP(C).NO.22426 OF 2020(C)** 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPORT OF ANTENATAL SONOGRAPHY DATED 13/10/2020.** **EXHIBIT P2** **TRUE COPY OF THE OUT PATIENT RECORD DATED 14/10/2020.** **EXHIBIT P3** **THE TRUE COPY OF THE REPORT DATED 15/10/2020 FROM HINDLABS DIAGNOSTIC CENTRE AND SPECIALTY CLINIC, THIRUVANANTHAURAM.** **EXHIBIT P4** **TRUE COPY OF THE OUTPATIENT RECORD DATED 16/10/2020 OF SAT HOSPITAL.** **EXHIBIT P5 THE TRUE COPY OF JUDGMENT IN WPC NO.TMP NO.206/2020.**