Thushara George and Reby Jacob C. v. Union of India and others

W.P(c).No.24031/2020-D 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942 WP(C).No.24031 OF 2020(D)** ## **PETITIONERS:** |**1**|**THUSHARA GEORGE**| |---|---| ||**AGED 37 YEARS**| ||**WIFE OF REBY JACOB, RESIDING AT CHUNDANGA**| ||**KOODALAPPAD, KOOVAPPADY, KUNNATHUNAD,**| ||**ERNAKULAM 683544.**| |**2**|**REBY JACOB C,**| ||**AGED 42 YEARS,**| ||**SON OF JACOB C V, RESIDING AT CHUNDANGA**| ||**KOODALAPPAD, KOOVAPPADY, KUNNATHUNAD,**| ||**ERNAKULAM 683544.**| ||**BY ADVS.**| ||**SHRI. AKASH S.**| ||**SMT.A.MEGHA**| ## **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.**| |**4**|**THE DIRECTOR OF MEDICAL EDUCATION,**| ||**MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKUZHI,**| ||**THIRUVANANTHAPURAM 695 015.**| |**5**|**THE DISTRICT MEDICAL OFFICER,**| ||**ERNAKULAM DISTRICT, PARK AVE, MARINE DRIVE,**| ||**ERNAKULAM, KERALA.**| W.P(c).No.24031/2020-D 2 - **6 THE SUPERINTENDENT, THE GENERAL HOSPITAL, HOSPITAL ROAD, ERNAKULAM 680 011.** - **7 ADDL.R7.SUERINTENDENT OF MEDICAL COLLEGE KOTTAYAM.** **(ADDL.R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED 11.11.2020 IN WP(C)24031/2020.”** **SMT.PRINCY XAVIER, GOVERNMENT PLEADER SRI.P.VIJAYAKUMAR, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(c).No.24031/2020-D 3 ## **JUDGMENT** ## **Dated this the 13[th] day of November 2020** The petitioners are husband and wife. They have filed this Writ Petition producing Exts.P5 to P8 scan reports/ other medical records in respect of the 1[st] petitioner and seeking a direction to the respondents to carry out medical termination of pregnancy of the 1[st] petitioner. The scan reports would show severe abnormalities to the fetus viz. Double outlet ventricle, conditions of pulmonary artesia and perimembraneous ventricular septal defect, etc. The gestation age of the fetus was 22 weeks and 2 days as on 03.11.2020. 2. When the matter came up for admission on 06.11.2020 this Court passed an interim order directing the 6th respondent to constitute a Medical Board and to examine the 1st petitioner. Though a Medical Board was constituted and a report was furnished, the learned Counsel for the petitioner submitted that the 1st petitioner was not subjected to any scan. On calling for explanation it was informed that no facilities are available in the General Hospital to subject the 1st petitioner to US scan 3, 4, etc. In view of the said report, another interim order was passed on 11.11.2020 directing the additional 7th respondent to convene a medical board to examine the petitioner and to make W.P(c).No.24031/2020-D 4 available a report on the following : _“I. Whether the continuance of the pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical and mental health._ _II. Whether there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped and if so, the nature of abnormalities._ _III. Whether, having regard to the advanced stage of pregnancy, there is any danger (other than usual danger which arises even in spontaneous delivery at the end of full term) if the pregnant mother is permitted to terminate her pregnancy._ _IV. The medical process best suited to terminate the pregnancy and the possibility of child being born alive.”_ 3. Smt. Princy Xavier, the learned Government Pleader has made available the report of the medical board which would show that the medical board was convened on 12.11.2020 itself with the following members: 1. Dr.Lissiamma George, HOD O&G-Chairman 2. Dr.Beenakumari.R, Addl.Professor, O&G 3. Dr.M.V.Radhamani, Addl.Professor , O&G 4. Dr.Sajini.B, Addl.Professor, O&G 5. Dr. Veerendrakumar.M, Addl.Professor, Paediatrics 6. Dr.Jayaprasad.N., Assoc.Professor,Cardiology 7. Dr.Ganga.G.Kaimal, Assoc.Professor, Psychiatry 8. Dr.Bijin B.S, Asst.Professor, Radio diagnosis The report reads as follows: _“As per above references, medical Board started at 1.45 PM on 12/11/20. Relevant history taken from the patient &_ W.P(c).No.24031/2020-D 5 _examination done. 36 year old Mrs. A, G3P2L2 presented with 23 weeks 4 days pregnancy.. Her LMP was on 31/05/2020 with regular menstrual cycles. She had first normal delivery & 2[nd] pregnancy terminated by full term caesarean section.. Past history of treatment by a Psychiatrist at the age of 16 years following a bus accident._ _On examination she is conscious & well oriented, well built & well nourished. BP -- 120/70mmhg. No pallor edema. Breast & thyroid normal. Other systems normal. Per abdomen uterus 24 weeks, foetal heart 150/minute. Mental Status Examination reveals a cooperative female with adequate psychomotor activity, relevant & coherent talk & euthymic affect. No depressive cognitions,, suicidal ideas or delusions elicited.. She expresses worries regarding the continuation of pregnancy. No hallucinations elicited. No gross cognitive impairment._ _USG done at GMCH, Kottayam 12/11/2020 - aorta is seen over riding with both right & left ventricular outlet. Pulmonary artery not visualized. Perimembraneous VSD noted.._ _Medical Board after detailed evaluation of the case has come to the following opinions._ _1. There is no injury to physical health for continuation of pregnancy. No major psychiatric illness diagnosed at present. She is mentally fit for taking decisions. Forced continuation of pregnancy may increase the psychological stress in mother._ _2. As per the USG findings the foetus is suffering from complex heart disease.(Double Outlet right ventricle with pulmonary atresia) which is usually associated with other systemic anomalies._ _The child if born is likely to suffer from serious physical & mental handicaps._ _3. There is minimally increased risk of MTP, since she is a case of previous one caesarean section._ W.P(c).No.24031/2020-D 6 _4. Termination of pregnancy can be tried by medical methods since it is 23 weeks & 4 days and if medical methods fails hysterotomy may be done. There is a possibility of child being born alive._ _5. Nil relevant._ _Conclusion:-_ _MTP is recommended for Mrs. A. by the Medical Board based on above opinions.”_ 4. In view of the aforesaid opinion of the medical Board, having detected grave abnormalities in the fetus, I deem it necessary to permit the petitioners to get the pregnancy of the 1st petitioner terminated. 5. Even though 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 finds that the termination is necessary to save the life of a pregnant mother. 6. 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 the pregnancy. In **Meera Santosh Pal v. Union of India** : (2017) 3 SCC 462 also permission was granted when the W.P(c).No.24031/2020-D 7 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. 7. Therefore, having regard to the urgency involved in the matter, there shall be a direction to the Superintendent of Medical College, Kottayam to see that the termination of pregnancy of the 1st petitioner is carried out at the earliest point of time, if possible,today itself, by competent doctors under the supervision of additional 7th respondent, 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 purpose. 8. As it is stated that there is a possibility of the child being born alive, in the process of 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 so that he/she develops into a healthy child. W.P(c).No.24031/2020-D 8 The Writ Petition is allowed accordingly. _**Sd/-**_ **P.V.ASHA JUDGE** ## **rkc** W.P(c).No.24031/2020-D 9 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AADHAR IDENTITY CARD OF THE 1ST PETITIONER. EXHIBIT P2 TRUE COPY OF THE AADHAR IDENTITY CARD OF THE THE 2ND PETITIONER.** - **EXHIBIT P3** **TRUE COPY OF THE LABORATORY REPORT FROM VATHIYAYATH HOSPITL DATED 08-07-2020.** - **EXHIBIT P4 TRUE COPY OF THE LABORATORY REPORT FROM VATHIYAYATH HOSPITAL DATED 23-09-2020.** - **EXHIBIT P5 TRUE COPY OF THE LABORATORY INVESTIGATION REPORT FROM MEDIVISION SCAN AND DIAGNOSTIC RESEARCH CENTRE DATED 26-08-2020.** - **EXHIBIT P6 TRUE COPY OF THE NACHAL TRANSLUCENCY SCAN REPORT DATED 25-08-2020 OBTAINED FROM VIVID IMAGING AND DIAGNOSTIC CENTRE.** - **EXHIBIT P7 TRUE COPY OF THE OBSTETRIC TIFFA SCAN REPORT DATED 02-11-2020 OBTAINED FROM VIVID IMAGING AND DAGNOSTIC CENTRE.** - **EXHIBIT P8 TRUE COPY OF THE OBSTETRICS ULTRASONOGRAPHY REPORT DATED 03-11-2020 OBTAINED FROM CIMAR FERTILITY CENTRE.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 04-04-2020 IN WP(C) NO. TMP 9/2020, ABC V, UNION OF INDIA.** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 26-06-2020 OF THIS HON'BLE COURT IN W.P(C) NO. 11726/2020.**