Kerala High Court
Remya T vs Union Of India on 18 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA,
1944
WP(C) NO. 1328 OF 2023
PETITIONER/S:
1 REMYA T.
AGED 30 YEARS
DAUGHTER OF DEVADASAN T, RESIDING AT
'THEKKETHODI', ARAKKINAR PO, KOZHIKODE , PIN -
673028
2 DEENADAYAL K
AGED 38 YEARS
SON OF SUNDARAN, RESIDING AT 'KELAPPANTAKATH',
MARAD BEACH, ARAKKINAR PO, KOZHIKODE , PIN -
673028
BY ADVS.
AKASH S.
GIRISH KUMAR M S
V.S.VARALEKSHMI
DEVIKA JAYARAJ
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
SASTHRI BHAVAN, NEW DELHI
, PIN - 110001
2 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
MINISTRY OF CHILD WELFARE, GOVERNMENT
SECRETARIAT,
THIRUVANANTHAPURAM
, PIN - 695001
3 THE DIRECTOR OF HEALTH SERVICES
GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM
, PIN - 695035
4 THE DIRECTOR OF MEDICAL EDUCATION
MEDICAL COLLEGE, KUMARAPURAM ROAD,
CHALAKUZHI, THIRUVANANTHAPURAM
, PIN - 695015
W.P.(C) No.1328 of 2023
-2-
5 THE SUPERINTENDENT
GOVERNMENT MEDICAL COLLEGE,
17, MAVOOR ROAD, KOZHIKODE
, PIN - 673008
OTHER PRESENT:
SRI MANU S
THIS WRIT PETITION (CIVIL) HAVING BEING FINALLY HEARD ON
17.01.2023, THE COURT ON 18.01.2023 DELIVERED THE FOLLOWING:
W.P.(C) No.1328 of 2023
-3-
JUDGMENT
Dated this the 18th day of January, 2023
The first petitioner, a married woman, whose
pregnancy has crossed the gestational age of 36
weeks, is before this Court seeking permission
for medical termination of her pregnancy.
According to the petitioners, after the first
petitioner's pregnancy was confirmed, they used
to visit the Doctors and undergo scans as per
schedule. No major anomalies were spotted in the
obstetrics scan conducted on the 20th and 30th
weeks of gestation. But to the petitioners'
dismay, the ultrasound scan conducted on
10.01.2023 revealed that the growth of the
foetus' head did not correspond to the rest of
the body. Thereupon, the first petitioner
underwent obstetrics and foetal doppler scans,
which further revealed that the foetus was
suffering from microcephaly, a condition where
W.P.(C) No.1328 of 2023
the head of the foetus is much smaller than the
rest of the body, resulting in the brain
development being arrested. In view of the foetal
anomalies, the petitioners decided to terminate
the pregnancy, but are unable to do so in view of
the time maximum term of 24 weeks prescribed in
the Medical Termination of Pregnancy Act, 1971
and the absence of a Medical Board as
contemplated under Section 3(2C) of the Medical
Termination of Pregnancy (Amendment) Act, 2021.
Hence, this writ petition.
2. When the writ petition came up for
admission 13.01.2023, the Superintendent,
Government Medical College, Kozhikode was
directed to constitute a Medical Board for
examining the first petitioner and the foetus and
a conclusive medical opinion regarding the
physical and mental status of the mother and the
abnormalities, if any, of the foetus.
Accordingly, the first petitioner was examined by
W.P.(C) No.1328 of 2023
the Medical Board examined and the following
report submitted;
"She is a 2nd gravida, previous Caesarian
with 36 weeks pregnancy, Fetus is diagnosed
to have microcephaly in USG done on 10-1-
2023, 11-1-2023 and 16-1-2023.
These are the conclusions made by the
Medical Board.
1) Pregnancy was uncomplicated and no
anomaly was detected till 35 weeks of
gestation which excludes a major
malformation /anomaly in the fetus. Hence
there is a very high possibility of having
a live, viable baby.
2) Mode of termination after 36 weeks
requires a cesarean section, as she has a
history of previous caesarian section.
3) We cannot deny routine care, including
resuscitation and ICU, care for the newborn
baby.
4) Moreover extra morbidities associated
with preterm delivery in both mother and
baby can be avoided, if termination is
planned at 38 weeks (as per the usual
protocol)
5) According to the present clinical
W.P.(C) No.1328 of 2023
examination of the mother, continuation of
pregnancy will not affect the physical and
mental status, if pregnancy is continued
for 2 more weeks.
6) The long term prognosis of the newborn
can be predicted only after delivery,
follow-up and evaluation."
3. Learned Counsel for the petitioner
contended that a woman's right to make
reproductive choice and the liberty of the
mother to terminate the pregnancy was declared
to be a dimension of her personal liberty in
Suchita Srivastava and another v. Chandigarh
Administration [(2009) 9 SCC 1]) and was
reiterated in Mrs.X v. GNCTD and another [2022
SCC OnLine Del 4274]. It is contended that going
by Section 3(2B) of the Act, as amended in 2021,
the pregnancy can be terminated even beyond the
maximum gestational age prescribed under the
Act, if the termination is necessitated by the
diagnosis of any of the substantial foetal
anomalies by a Medical Board.
W.P.(C) No.1328 of 2023
4. Learned Government Pleader opposed the
prayer, pointing out that the Medical Board's
opinion was against termination and the pregnancy
cannot be terminated based on an apprehension
that the new born baby may have morbidities.
5. A careful scrutiny of the Medical Board's
report reveals that the Board has observed that
continuation of the pregnancy for two more weeks
will not affect the physical and mental status of
the mother. It is opined that the pregnancy was
uncomplicated and no anomaly was detected till 35
weeks of gestation which excludes a major
malformation/anomaly in the fetus. According to
the Board, there is a very high possibility of
having a live, viable baby. Considering that the
mode of termination after 36 weeks requires
caesarian section, it is opined that continuing
pregnancy till 38 weeks will be a better option
than termination by a caesarian section at 36
weeks. Thus, the medical opinion is definitely
W.P.(C) No.1328 of 2023
against grant of permission for termination of
pregnancy.
6. No doubt, the Apex Court has declared a
woman's right to make reproductive choice to be a
dimension of her personal liberty in Suchita
Srivastava(supra), but the question is whether
such liberty can transgress the
restrictions/prohibition under the Medical
Termination of Pregnancy Act, that too when the
experts have given a conclusive opinion that
continuance of the pregnancy is better than
premature termination. Yet another consideration
is that the gestational age having crossed 36
weeks, there is every possibility of having a
live viable baby. Even going by Section 3(2B),
termination beyond the maximum period can be
permitted only if the Medical Board points out
substantial foetal anomalies. As no anomaly was
detected till 36 weeks of gestation, the Board
has excluded major malformation, anomaly in the
W.P.(C) No.1328 of 2023
foetus. It is also stated that the long term
prognosis of the newborn can be predicted only
after delivery, follow-up and evaluation. The
opinion not being definite about any substantial
anomaly to the foetus and there being no threat
to physical and mental status of the mother if
the pregnancy is continued for two more weeks,
this court cannot permit medical termination of
the pregnancy, particularly when the opinion is
that the extra morbidities associated with
preterm delivery in both mother and baby can be
avoided if the termination is planned as per
usual protocol. The above reasons compel me to
decline the prayer for termination of pregnancy.
In the result, the writ petition is
dismissed.
Sd/-
V.G.ARUN
JUDGE
Scl/
W.P.(C) No.1328 of 2023
APPENDIX OF WP(C) 1328/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AADHAAR IDENTITY CARD
OF THE 1ST PETITIONER
Exhibit P2 TRUE COPY OF THE AADHAAR IDENTITY CARD
OF THE 2ND PETITIONER
Exhibit P3 TRUE COPY OF THE 2/3 TRIMESTER
OBSTETRICS SCAN REPORT DATED
11.01.2023 PERFORMED AT THE BABY
MEMORIAL HOSPITAL, KOZHIKODE
Exhibit P4 TRUE COPY OF THE FETAL DOPPLER SCAN
REPORT DATED 11.01.2023 PERFORMED AT
THE BABY MEMORIAL HOSPITAL, KOZHIKODE
