Siddamma Golsar vs Union Of India Through Its ...
2018 Latest Caselaw 992 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                          Writ Petition NO. 766 OF 2018

Siddamma Golsar,
Shri Dattakrupa CHS Ltd.,
5th Floor, Building B/2,
Flat No.511, S.V. Road,
Santacruz (W), Mumbai-400054                                ..Petitioner
             Versus
1.  Union of India,
    through the Secretary,
    Ministry of Law and Justice,
    Shastri Bhawan,
    "C" Wing, New Delhi-110001.


2.  State of Maharashtra,
    through the Principal Secretary, 
    Public Health Services,
    Mantralaya, Mumbai 23.


3.  Ministry of Health and
    Family Welfare,
    through its Secretary,
    M.H. Division, New Delhi.                               ..Respondents



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                                   ....
Ms. Meenaz Kakalia i/b. Kranti L.C., Advocate for the Petitioner.

Ms. Purnima Awasthi a/w. Mr. Upendra Lokegaonkar i/b. A.A. Ansari, 
Advocate for Respondent Nos.1 & 3.

Mr. Sandeep Babar, A.G.P. for Respondent No.2 - State.
                                   ....


                               CORAM :  R.M. BORDE & 
                                        R. G. KETKAR, JJ.

DATE : 25th JANUARY, 2018

ORAL JUDGMENT: [PER R.M. BORDE, J.]

Heard. Rule. With the consent of the parties, Rule made

returnable forthwith and the Petition is taken up for final disposal at the

admission stage.

2. The petitioner is a pregnant lady who is praying for issuance

of direction to the respondents to permit her to undergo the procedure

of medical termination of pregnancy. It is reported that the petitioner is

undergoing pregnancy at 22nd week. On examination by the Sonologist

initially on 5.1.2018, certain anomalies were noticed. The Sonologist

on examination reported several foetal anomalies as recorded below:

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" Levocardia. Common AV canal defect with large primum ASD. B/L SVC. Single ventricle with no IVS seen. DOV with D-malposed great arteries. Anterior aorta. Severe PS with confluent good sized branch pulmonary arteries. Normal function. Mild right AVVR. Detailed report attached. The baby will most likely require single ventricle palliation surgical pathway for the cardiac disease postnatally. I have explained to the parents that the baby will require 2-3 cardiac surgeries in its lifetime, the first 2 surgeries of which are done within the first 2 months of life. To reassess the cardiac echo soon after birth to confirm the treatment plan."

3. Considering the preliminary report of the Sonologist, this

Court by order dated 19.1.2018 directed medical examination of the

petitioner by a Medical Board of Sir J.J. Group of Hospitals, Mumbai

consisting of Dean of the said Hospital, Head of the Department

(Gynecology), Professors and Head of Department of Pediatrics/Cardiac

Surgeon, Professors or Head of Department of Radiology and

Neurology and any other expert in the field to be inducted in the Board

at the option of the Dean of Medical College. The petitioner

accordingly appeared before the Medical Board on 20.1.2018 and was

examined by the Board. The petitioner has also undergone the

radiological examination. The observations of the Medical Board are

quoted as below :

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 Observations of Dr. Vilas Kurude (Associate Prof. Dept. of Obstetrics & Gynecology) ::

 G.C. Fair TPR - Normal  BP 110/70 mm Hg  PA- Uterus - 22 weeks  External ballotment + Diagnosis - Primigravida with 22 weeks gestation with congenital anomalous baby (Multiple cardiac anomalies)

 Observations of Dr. Shilpa Domkundwar (Prof. & Head, Dept. of Radiology)::

OBSTETRICS

PRESENTATION CEPHALIC UMBILICAL CORD 3 VESSEL NO CORD AROUND NECK, CARDIAC ACTIVITY SEEN 136 beats / min FETAL MOVEMENTS PRESENT PLACENTA FUNDO POSTERIOR CERVICAL, LENGTH ADEQUATE PLACENTAL, NORMAL, INTERNAL OS CLOSED THICKNESS NO RETROPLACENTAL CLOTS

Fetal Biometry : AFI : 6-7 cm, ADEQUATE

BPD 54 mm 22 weeks 5 days HC 200 mm 22 weeks 1 day AC 160 mm 21 weeks 1 day FL 38 mm 22 weeks 2 days MGA 22 weeks 1 day EFW 450 +/- 66 gms EDD 25/05/2018

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Fetal 2 D ECHO :

Situs solitus Levocardia 3 Chamber view seen with single ventricle. Common AV canal defect is seen. Double outlet single ventricle seen with transposed great arteries.

Aorta normal calibre.

Pulmonary artery : Valvular and infundibular stenosis seen.

RA and LA normal with ostium primum defect. Pulmonary veins cannot be evaluated. SVC and IVC draining RA PDA shows right to left flow.

Brain :

Incidental borderline ventriculomegaly seen.

Impression : Single live intrauterine gestational sac of mean gestational age 22 weeks and 1 day with double outlet single ventricle, common AV canal defect, transposed great arteries, pulmonary valvular and infundibular stenosis and incidental ventriculomegaly.

 Observations of Dr. K. N. Bhosle (Prof. & Head, Dept. of C.V.T.S.)

 Fetal 2D Echo : Complex cyanotic congenital heart disease in the form of

1) Common AV canal defect.

2) Double outlet single ventricle.

3) Valvular and infundibular pulmonary stenosis.

4) Transposition of great arteries.

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5) Obligatory patient Ductus arteriosus.

Opinion : Foetus, 22 weeks gestation with complex congenital cyanotic heart disease, having very high mortality outcome for multistage cardiac surgical management. Above complex cardiac anomalies endanger viability of foetus by virtue of their morphological complicatedd isposition requiring multiple surgical interventions.

 Observations of Dr. D. R. Kulkarni (Prof. & Head, Dept. of Pediatric Surgery) ::

On examining the patient and going through the report it appear that patient is having multiple cardiac anomalies for which expert cardiothoracic surgeon opinion is essential. As such no anomolies noticed in relation with pediatric surgical problems.

 Observations of Dr. Kamlesh Jagyasi, (Prof. & Head, Dept. of Neurology)::

Siddamma 25 years old married female with 22 weeks gestation referred with multiple cardiac anomalies in fetus detected by sonography. There is borderline ventriculomegaly as per the sonography and no other nervous systems anomaly has been mentioned. There is no neurological indication for medical termination of pregnancy, refer to CVTS Surgeon for expert opinion.

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4. The Committee has recorded its opinion as narrated below :

" COMMITTEE OPINION UPON EXAMINATION AND AFTER CAREFUL STUDY OF SONOGRAPHY REPORTS AND FETAL 2D ECHO REPORT, IT IS CONFIRM THAT FETUS SUFFERS FROM SERIOUS CARDIAC ANOMALIES, WITH VERY HIGH CHANCE OF MORBIDITY AND MORTALITY.

THE WOMAN HAS BEEN EXPLAINED ABOUT THE OUTCOME IN THE LANGUAGE SHE UNDERSTANDS.

THE CONDITION OF THE FETUS FULFILS THE CRITERIA OF "SUBSTANTIAL RISK OF SERIOUS PHYSICAL HANDICAP" IN THE FETUS.

THE PREGNANT WOMAN HAS VOLUNTARILY EXPRESS HER DESIRE TO TERMINATE THE PREGNANCY AND IS WELL INFORMED ABOUT THE NATURE OF THE CONDITION O FTHE FETUS AND ITS OUTCOME. SHE IS EXTREMELY ANGUISHED WITH THE CONDITION OF FETUS INUTERO.

THE PREGNANCY HAS ADVANCED TO 22 WEEKS AND IS BEYOND THE 20 WEEKS CUT OFF OF THE MEDICAL TERMINATION OF PREGNANCY ACT. HENCE SHE HAS BEEN APPROACHED TO HONORABLE COURT FOR TERMINATION OF PREGNANCY.

AT THIS STAGE OF A PREGNANCY, THE RISK OF TERMINATION REMAINS THE SAME AS THAT OF NATURAL LABOUR AT TERM.

THUS IF THE COURT PERMITS THE PREGNANCY CAN BE TERMINATED AS DESIRED BY THE WOMEN."

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5. On consideration of the observations of each of the Member

of the Medical Board, the Committee has opined that the "fetus fulfills

the criteria of substantial risk of serious physical handicap" in the fetus.

It is reported by the committee that the fetus suffers from serious

cardiac anomalies with very high chance of morbidity and mortality.

The petitioner was explained the diagnosis as well as the problems by

the Committee. The petitioner is also made aware of the risks involved

in the termination of the pregnancy. The Committee has reported that

the risk of termination of pregnancy at 22nd week remains as the same

as that of natural labour term. The Committee is of the opinion that if

the Court grants permission the pregnancy can be terminated as desired

by the petitioner.

6. This Court while dealing with an identical issue raised in Writ

Petition (stamp) No.36727/2017 and while considering the

permissibility to exercise the powers after lapse of 20 weeks period

pregnancy as provided under Section 3 of the Medical Termination of

Pregnancy Act, 1971, has concluded that the provisions of Section 3(2)

(b) clauses (i) & (ii) shall have to be read while interpreting Section

5(1) of the Act of 1971. This Court has opined that the only portion

recorded in Section 3 which is referable to the length of the period of

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pregnancy shall have to be excluded. In paragraph-22 of the judgment

it is observed thus:

"22. In the instant matter, on reading of Section 5 of the Act of 1971, it does transpire that the contingencies and the parameters laid down in clauses

(i) & (ii) of sub-section (2)(b) of Section 3 shall have to be read in Section 5 except the bar of limitation as provided in Section 3(2)(b) of the Act of 1971. It would not be appropriate to over look the contingencies laid down in clauses (i) & (ii) of sub- section (2)(b) of Section 3 while considering the request of a pregnant woman for termination of the pregnancy if the conditions laid down in clauses (i) &

(ii) of sub-section (2)(b) of Section 3 are satisfied it would provide a good ground for exercise of jurisdiction under Section 5 of the Act of 1971."

7. In view of determination by this Court on interpretation of

provisions of Section 5 of the Act of 1971, it would be permissible to

direct termination of pregnancy carried by the pregnant woman in the

event of noticing substantial risk of physical or mental abnormalities in

case the child were to born or that it would suffer serious handicap.

The parameters laid down under Clause (ii) of sub-section 2(b) of

Section 3 gets attracted while interpreting Section 5 of the Act of 1971

and in such circumstances as noticed in the instant matter so also as

noticed by this Court in Writ Petition (St.) No.36727/2017, it would be

open for this Court to exercise the jurisdiction under Section 5 of the

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Act of 1971 and pass necessary orders as prayed for by the petitioner.

8. The provisions of Section 4 of the Act provides that no

termination of pregnancy shall be made in accordance with this Act at

any place other than a hospital established or maintained by the

Government or a place for the time being approved for the purpose of

the Act of 1971 by the Government or a District Level Committee

constituted by that Government with the Chief Medical Officer or

District Health Officer as the Chairperson of the said Committee. (The

District Level Committee consisting of not less than three and not more

than five members including the Chairperson, as the Government may

specify from time to time.)

9. For the reasons recorded above as also considering the view

taken by us while disposing of Writ Petition (Stamp) No.36727/2017,

the instant Petition is allowed. The petitioner is permitted to undergo

medical termination of pregnancy at a medical facility of her choice as

provided under Section 4 of the Act of 1971. The petitioner undertakes

to report to the approved center for carrying out the procedure of

medical termination of pregnancy within two days from today.

10. The Counsel appearing for the petitioner states, on

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instructions, that the petitioner will bear the medical expenses of the

procedure of medical termination of pregnancy at a medical facility of

her choice as specified in Section 4 of the Act of 1971.

11. It is clarified at this stage that the petitioner has been

sensitized by the Committee/Medical Board about the risk factors

involved and it would be open for the petitioner to undergo the

procedure of medical termination of pregnancy at her own risk and

consequences. It is further made clear that the Doctors who have put

their opinions on record shall have the immunity in the event of

occurrence of any litigation arising out of the instant Petition.

12. Rule is accordingly made absolute. There shall be no order

as to costs. The operative part of this judgment shall be uploaded today

and all concerned parties, including concerned approved Medical

Center, to act upon the authenticated copy of the operative order.

          (R. G. KETKAR, J.)                                (R.M. BORDE, J.)



Deshmane (PS)




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