Kerala High Court
Indulekha Sreejith vs Union Of India on 27 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
WP(C) NO. 17036 OF 2021
PETITIONER:
INDULEKHA SREEJITH
AGED 34 YEARS
W/O. SREEJITH MENON.S., KAVALAMPILLY HOUSE,
CHANGAMPUZHA NAGAR P.O., PIN-682 033, ERNAKULAM
DISTRICT
BY ADVS.
SRI.P.T.MOHANKUMAR
SRI.GEORGE CHERIAN
SRI.RAJESH CHERIAN KARIPPAPARAMBIL
RESPONDENTS:
1 UNION OF INDIA
REP BY ITS SECRETARY, MINISTRY OF WOMEN AND CHILD
DEVELOPMENT, SHASTRI BHAVAN, NEW DELHI-110 001
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF WOMEN
AND CHILD DEVELOPMENT , GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
3 THE DISTRICT MEDICAL OFFICER,
OFFICE OF THE DISTRICT MEDICAL OFFICER, ERNAKULAM,
ERNAKULAM,PIN-682 011
4 THE PRINCIPAL,
GOVT. MEDICAL COLLEGE ALAPPUZHA, VANDANAM,
ALAPPUZHA, PIN-688 005
5 DIRECTOR,
DEPARTMENT OF GYNAECOLOGY AND OBSTETRICS, SUNRISE
HOSPITAL, KAKKANADU P.O., KOCHI-682 030
W.P.(C) No.17036 of 2021 2
6 SUPERINTENDENT
MEDICAL COLLEGE, ALAPPUZHA
IS SUO MOTU IMPLEADED AS ADDITIONAL R6 AS PER
ORDER DATED 17.08.2021 IN WPC 17036/2021
BY ADVS.
SMT.VINITHA B, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.08.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(C) No.17036 of 2021 3
C.R.
P.B.SURESH KUMAR, J.
-------------------------------------------
W.P.(C) No.17036 of 2021
--------------------------------------------
Dated this the 27th day of August, 2021
JUDGMENT
A pregnant woman, the gestation of whose pregnancy
corresponds to 31 weeks, has approached this Court seeking
directions to the respondents to terminate her pregnancy. The
case of the petitioner is that though substantial foetal
abnormalities have been diagnosed, the respondents are refusing
to terminate the pregnancy, as the outer time limit prescribed for
termination in terms of the provisions of the Medical Termination
of Pregnancy Act, 1971 (the Act) is over.
2. Heard the learned counsel for the petitioner as
also the learned Government Pleader.
3. On 17.8.2021, this court passed the following
interim order :
"Heard the learned counsel for the petitioner and the
learned Government Pleader.
Superintendent, Medical College, Alappuzha is suo motu
impleaded as additional respondent No.6. There will be a
direction to the Superintendent, Medical College, Alappuzha to
convene the permanent medical board specified under Exhibit
P6, Government Order, G.O.(Rt) No.2444/2020/H&FWD dated 31-
12-2020 and to arrange for the medical examination of the
petitioner with further direction to submit a medical report before
this Court on or before 31.08.2021.
Post on 31.08.2021."
4. In compliance with the interim order aforesaid,
the Medical Board at the Medical College Hospital, Alappuzha
examined the petitioner on 24.8.2021, and the report of the
Medical Board has been made available to the Court. The
operative portion of the report reads thus:
"Mrs.Indulekha Sreejith, aged 34 yrs, attended Medical Board along
with her father K.K.Gopinath 66 yrs and mother Sobana Kumary 60
yrs at 11 am on 24/08/2021. Indulekha Sreejith is a 3 rd gravida with 2
normal deliveries in past. Her LMP 17/01/2021 and gestational age is
29 weeks as per L.M.P. Ultra sound done on 24/08/2021 from TDMC,
Alappuzha showed gestational age of 30 weeks +4 days. The Left
Kidney of the fetus is muti cystic dysplastic with PUJ obstruction.
Both Humerus bone length is less than 1 percentile. Other bones
appear normal. No lethal anomalies detected in the present scan.
Medical Board evaluated the patient's condition and reached
the following conclusion.
Anomaly detected in antenatal scan is non lethal and present
gestational age is 30 weeks + 4 days. No Chromosomal study
reports are available at present. So termination of pregnancy may
result in a live baby who may need prolonged hospitalisation
because of prematurity. So it will be better to continue the
pregnancy till term." (underline supplied)
The case of the petitioner that there is foetal abnormalities
cannot be disputed in the light of the said report. But, as seen
from the report, since it is found that the abnormalities are not
lethal and the termination of pregnancy is likely to result in a live
baby, the Medical Board is not in favour of termination of the
pregnancy. The question falls for consideration, therefore, is
whether this court would be justified in permitting medical
termination of pregnancy in a case where a duly constituted
Medical Board opines that the foetal abnormalities are not lethal
and the stage of pregnancy is such that it may result in a live
baby, merely for the reason that the pregnant woman chooses to
terminate the pregnancy.
5. Before proceeding to decide the question, it is
necessary to refer to the object of the Act. It is seen that the Act
has been introduced to legalise termination of pregnancy by
registered medical practitioners in certain contingencies which
would have otherwise constituted the offence of causing
miscarriage in terms of the provisions of the Indian Penal Code,
mainly with a view to protect the life and health, both physical
and mental, of the pregnant woman. Going by the provisions
contained in sub-section (2) of Section 3 of the Act, a pregnancy
can be medically terminated only if the continuance of the
pregnancy would involve a risk to the life of the pregnant woman
or grave injury to her physical or mental health or there is a
substantial risk that if the child were born, it would suffer from
serious physical or mental abnormalities as to be seriously
handicapped. Explanation (1) to sub-section (2) clarifies that the
anguish caused by her pregnancy if it is caused on account of
rape, shall be presumed to constitute a grave injury to the mental
health of the pregnant woman. Explanation (2) to the said sub-
section clarifies that where the pregnancy occurs as a result of
failure of any device or method used by her or her husband for
the purpose of limiting the number of children, the anguish
caused by such unwanted pregnancy may also be presumed to
constitute a grave injury to the mental health of the pregnant
woman. Sub-section (3) of Section 3 clarifies that in determining
whether the continuance of pregnancy would involve grave injury
to the physical and mental health of the pregnant woman, the
actual or reasonably forseeable environment of the pregnant
woman can be taken into account. The Act has prescribed an
outer time limit of 20 weeks, in terms of sub-section (2), for
terminating a pregnancy medically. In other words, the scheme of
the Act is that a pregnancy cannot be terminated medically after
20 weeks, even if the circumstances mentioned in sub-section (2)
of Section 3 exist. Section 5 of the Act, however, clarifies that the
requirements in sub-section (2) of Section 3 do not apply to the
termination of a pregnancy by a registered medical practitioner in
a case where he is of the opinion that the termination of such
pregnancy is immediately necessary to save the life of the
pregnant woman.
6. Despite the provisions in the Act as regards the
outer time limit within which a pregnancy could be terminated
medically, having regard to the fundamental rights of the citizens,
the constitutional courts in the country have been permitting
termination of pregnancies medically if the continuance of the
pregnancy would involve a risk to the life of the pregnant woman
or grave injury to her physical or mental health or there is a
substantial risk that the child, if born, would suffer from serious
physical or mental abnormalities as to be seriously handicapped.
The trend of the decisions rendered by the courts in this regard
would indicate the inadequacy of the provisions in the Act to
protect the fundamental right to life of the pregnant woman to its
fullest extent, especially having regard to the advancement of
medical technology for safe abortion. It appears, having taken
note of the decisions rendered by the constitutional courts in this
regard, with a view to ensure dignity, autonomy, confidentiality
and justice for women who need to terminate pregnancy, the Act
has been amended in terms of the Medical Termination of
Pregnancy (Amendment) Act, 2021. The Amended Act, however,
has so far not been notified. The essence of the amendments
introduced to the Act is that the outer time limit prescribed for
terminating the pregnancy medically is raised from 20 weeks to
24 weeks and that the restriction as regards the outer time limit
will not apply to the termination of pregnancy where such
termination is necessitated by the diagnosis of any substantial
foetal abnormalities by a Medical Board constituted in terms of
the provisions of the Act. In other words, once the Amendment
Act is notified, the termination of pregnancy would be lawful if it
is carried out within 24 weeks, if the grounds mentioned in sub-
section (2) of Section 3 exist. Similarly, once the Amendment Act
is notified, the termination of pregnancy would be lawful even if it
is carried out beyond 24 weeks if a Medical Board constituted in
terms of the provisions of the Act diagnoses substantial foetal
abnormalities.
7. An unborn child has a life of its own and rights of
its own and the rights of unborn are recognised by law. No
doubt, only if the unborn can be treated as a person, the right to
life of the unborn can be equated with the fundamental right of
the mother guaranteed under article 21 of the Constitution. True,
an unborn is not a natural person, but it is well known that after
six weeks, life is infused into the embryo, thus converting embryo
into foetus and once an embryo evolves into a foetus, the
heartbeat starts. In other words, the unborn has life from the
stage it transforms into foetus. If the unborn has life, though it is
not a natural person, it can certainly be considered as a person
within the meaning of article 21 of the Constitution, for there is
absolutely no reason to treat an unborn child differently from a
born child. In other words, the right to life of an unborn shall also
be considered as one falling within the scope of Article 21 of the
Constitution.
8. In all cases where a court is called upon to
adjudicate the question whether permission shall be granted to a
pregnant woman for terminating her pregnancy on a plea of
infringement of her fundamental right to life guaranteed under
Article 21 of the Constitution, the court is making a balance
between the rights of the mother and the rights of the unborn.
No doubt, while doing so, if there is any threat to the life of the
mother, the scales shall certainly tilt in favour of the mother, for if
the life of the mother cannot be saved, the life of the unborn
cannot be protected.
9. Reverting to the question, when a duly
constituted Medical Board opines that the stage of pregnancy is
such that it may result in a live baby and that the foetal
abnormalities diagnosed are not lethal, in the absence of any
threat to the life or health of the mother, I am of the view that the
reproductive choice of the mother which is a facet of the
fundamental right guaranteed to her under Article 21 of the
Constitution, will have to give way to the right of the unborn to be
born. True, if the Medical Board diagnoses substantial foetal
abnormalities, the amended provisions of the Act permit
termination of pregnancy notwithstanding the outer time-limit
prescribed in the Act for termination of pregnancy. According to
me, even if the amended provisions were notified, the relief
sought by the petitioner in the instant case cannot be granted at
this stage of her pregnancy, for the Medical Board has not opined
that foetal abnormalities found are substantial in nature. The
question formulated for decision is thus answered in the negative.
In the result, the writ petition is dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
PV
APPENDIX OF WP(C) 17036/2021
PETITIONER'S EXHIBITS
Exhibit P1 THE TRUE COPY OF THE SCAN REPORT DATED
13.08.2021 ISSUED BY DR.ANURAG V.M.,
DEPARTMENT OF RADIOLOGY, SUNRISE
HOSPITAL, KAKKANAD ,KOCHI-682 030
Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED
14.08.2021 ISSUED BY THE PAEDIATRICIAN
DR.M.H.MOHAMMED SAHEER
Exhibit P3 TRUE COPY OF THE MEDICAL CERTIFICATE
DATED 14.08.2021 ISSUED BY THE SENIOR
CONSULTANT GYNECOLOGIST AND LAPAROSCOPIC
SURGEON, DR.HAFEES RAHMAN PADIYATH
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED
06.04.2021 IN WPC 4117/2021 OF HON'BLE
HIGH COURT OF DELHI
Exhibit P5 TRUE COPY OF EMAIL COMMUNICATION (LETTER
OF CONSENT) DATED 16.08.2021 OF HUSBAND
OF THE PETITIONER
Exhibit P6 TRUE COPY OF THE GOVERNMENT ORDER GO
(RT) NO.2444/2020/H & FWD DATED
31.12.2020
