[Cites 9, Cited by 0]
Kerala High Court
Ancy Kandisseril Alex vs The Union Of India on 18 December, 2025
2025:KER:54160
WP(C) No.46749/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 18TH DAY OF DECEMBER 2025 / 27TH AGRAHAYANA, 1947
WP(C) NO. 46749 OF 2025
PETITIONER/S:
1 ANCY KANDISSERIL ALEX
AGED 28 YEARS
W/O. SAJI MATHEW KOSHY, KALLUMKOOTTATHIL HOUSE,
PRAKKANAM.P.O., PATHANAMTHITTA, PIN - 689643
2 SAJI MATHEW KOSHY
AGED 35 YEARS
S/O.LATE K.M. KOSHY, KALLUMKOOTTATHIL HOUSE,
PRAKKANAM.P.O., PATHANAMTHITTA, PIN - 689643
BY ADVS.
SRI.D.KISHORE
SMT.MEERA GOPINATH
SHRI.ANANT KISHORE
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF WOMEN AND
CHILD DEVELOPMENT, SASTHRI BHAVAN, NEW DELHI, PIN -
110001
2 THE 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
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WP(C) No.46749/2025
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4 THE DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE.P.O.,
THIRUVANANTHAPURAM, PIN - 695011
5 THE DISTRICT MEDICAL OFFICER
PATHANAMTHITTA DISTRICT, OFFICE OF THE DISTRICT MEDICAL
OFFICER, CHITTOOR, PATHANAMTHITTA, PIN - 689645
6 ADDL.R6. THE SUPERINTENDENT OF MEDICAL COLLEGE
HOSPITAL,
GANDHI NAGAR, KOTTAYAM, KERALA - 686008 (ADDL.R6 IS SUO
MOTU IMPLEADED AS PER ORDER DATED 12-12-2025 IN WPC
46749/2025)
BY ADV SHRI.NAVANEETH.N.NATH, ADDITIONAL STANDING
COUNSEL, INCOME TAX DEPARTMENT
OTHER PRESENT:
SRI.SHAMEER P M -GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) No.46749/2025
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JUDGMENT
The petitioners, who are husband and wife, have been seeking
medical termination of 25 weeks' old pregnancy of the first petitioner,
after having found the foetus is having a complex congenital heart
disease. The petitioners are also parents of a child. Exts.P2 to P4 would
indicate that there is substantial risk that, if the child is born, it would
suffer from serious physical abnormalities The petitioners, therefore,
seek for a direction to the respondents to permit the first petitioner to
undergo medical termination of pregnancy.
2. Heard the learned counsel for the petitioners, the learned
Central Government Counsel and the learned Government Pleader.
3. When the writ petition came up for consideration on 12.12.2025,
this Court directed the additional sixth respondent to constitute a
Medical Board for the purpose of assessing the following:-
a) Whether continuance of the petitioner's pregnancy will involve risk
to her life or grave injury to her physical or mental health?
b) Whether there is a substantial risk that if the child is born, it will
suffer from such physical or mental abnormalities as to be
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seriously handicapped and if so, the nature of abnormalities; and,
c) 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?
4. On 16.12.2025, the learned Government Pleader, on
instructions, submitted that the Medical Board could not be constituted
on 15.12.2025 and further submitted that it would be constituted on
17.12.2025. Accordingly, the first petitioner was directed to appear
before the Superintendent, Medical College Hospital, Kottayam, on
17.12.2025. Today, the learned Government Pleader made available
before this Court a report dated 17.12.2025 of the Medical Board, which
reads as follows:
"5. Available report and investigations:
SL.No. Report Opinion on the findings
01. G2 P1 L1, Pre. CS with LMP-June 3 rd, Opinion as per the advice
Departmen Corrected GA: 25W, 3days, O/E: Pulse: of the Cardiologist
t of OBG 98/mt, BP-127/75mm of Hg, Ht:171 cms,
Wt:87kg, P/A-24 weeks, FP+, FH+,
USG:on 17/12/2025, SLIUF of AGA 25 W
4 days Situs inversus partialis with
levocardia and complex cardiac anomaly
and Single umbilical artery
02. Dept of Situs inversus partialis with levocardia Opinion as per the advice
Radio and complex cardiac anomaly (small right of the Cardiologist
Diagnosis ventricle with both pulmonary artery and
aorta arising from the left ventricle)
Single umbilical artery
03. Dept of Fetal echo from higher and multiple In favour of MTP as
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Cardiology centres suggestive of single ventricle requested.
physiology. immediate post partum / early
neonatal life might require surgical
intervention, which is likely to be
palliative more than curative. Even with
surgical intervention long term prognosis
is dismal, as per studies in case of single
ventricle physiology.
04. Dept of 28 yrs old Female (25 weeks pregnant) Based on history and
Psychiatry with no past history of psychiatric illness, current MSE Ancy has
detected to have congenital cardiac adequate intelligence and
anomaly in fetus - approached High intact judgment to take
Court for MTP. No significant alteration decision regarding
in biological functions. MSE- worried termination of pregnancy.
about the health of baby in view of There is no
multiple cardiac related anomalies. contraindication for MTP
Average intelligence. Judgment intact. from our side.
05. Dept of 28 years old G2P1L1, GA-25 weeks 3 Prognosis of the baby
Paediatrics days, anomaly scan showing complex postnatally is poor. Baby
cardiac anomaly in the fetus single may need multiple
ventricle physiology, situs inversus surgical procedures in the
partialis and single umbilical artery. immediate postnatal
period after taking
postnatal
echocardiography which
may be more of palliative
than curative. There is
high mortality and
morbidity rate as per
studies for single ventricle
physiology.
5. Additional Investigations (if any)
SL.No. Investigations done Key findings
1 Nil Nil
6. Opinion by Medical Board for termination of pregnancy:
a) Allowed: Allowed
b) Denied:
Justification for the decision: The child if delivered has got poor
prognosis in survival and may develop severe morbidity. Hence MTP may
be recommended.
7. Physical fitness of the woman for the termination of pregnancy:
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a) Yes: Yes
b) No:
Members of the Medical Board who reviewed the case.
SL.No. Name Signature
Chairman Dr. Anitha K. Gopal, Professor, Dept. of Sd/-
OBG
Members Dr. Bessy Binu Sam, Professor (CAP), Sd/-
01 Dept of OBG
102 Dr.Athira Prasad, Assistant Professor, Sd/-
Dept of Radio Dianosiss
103 Dr.Prasobh V.A., Assistant Professor, Sd/-
Dept of Cardiology
104 Dr. Soumya Prakash, Assistant Professor Sd/-
Dept of Psychiatry
105 Dr.Sherin Ann George, Assistant Sd/-
Professor
Dept. of Pediatrics
Date and Time: 17.12.2025, 12.30 pm"
5. The Medical Report reveals that the gestational age is 25
weeks and three days. Learned counsel for the petitioners submits that
the first petitioner is prepared to proceed with the termination of
pregnancy at a higher medical centre with facilities for proper medical
care as provided in the report. The learned counsel for the petitioner
further submits that this Court, while referring the petitioner for
termination, may also leave her choice in respect of the hospital. The
learned counsel placed reliance on the Government of India guidelines
that are referred to by the Honourable Supreme Court in A (Mother of
X) v. State of Maharashtra [(2024) 6 SCC 327] to support his
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submission.
6. The termination of pregnancy is governed by the Medical
Termination of Pregnancy Act, 1971 ('Act', in short), and the rules
framed thereunder. The Act is a progressive legislation that regulates
how pregnancies can be terminated.
7. Section 3 of the Act spells out the conditions to be satisfied to
terminate a pregnancy, which reads as follows:
"S.3 - When pregnancies may be terminated by registered medical
practitioners.--
(1) Notwithstanding anything contained in the Indian Penal Code
(45 of 1860), a registered medical practitioner shall not be guilty
of any offence under that code or under any other law for the
time being in force, if any pregnancy is terminated by him in
accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may
be terminated by a registered medical practitioner, ―
(a) where the length of the pregnancy does not exceed twenty
weeks, if such medical practitioner, is or (b) where the length
of the pregnancy exceeds twenty weeks but does not exceed
twenty - four weeks in case of such category of woman as may
be prescribed by rules made under this Act, if not less than two
registered medical practitioners are, of the opinion, formed in
good faith, that―
(i) the continuance of the pregnancy would involve a risk to
the life of the pregnant woman or of grave injury to her
physical or mental health; or (ii) there is a substantial risk
that if the child were born, it would suffer from any serious
physical or mental abnormality.
Explanation 1.―For the purposes of clause (a), where any
pregnancy occurs as a result of failure of any device or method
used by any woman or her partner for the purpose of limiting the
number of children or preventing pregnancy, the anguish caused
by such pregnancy may be presumed to constitute a grave injury
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to the mental health of the pregnant woman.
Explanation 2. ― For the purposes of clauses (a) and (b), where
any pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by the pregnancy shall be
presumed to constitute a grave injury to the mental health of the
pregnant woman.
(2A) The norms for the registered medical practitioner whose
opinion is required for termination of pregnancy at different
gestational age shall be such as may be prescribed by rules made
under this Act.
(2B) The provisions of sub-section (2) relating to the length of the
pregnancy shall not apply to the termination of pregnancy by the
medical practitioner where such termination is necessitated by the
diagnosis of any of the substantial foetal abnormalities diagnosed
by a Medical Board.
(2C) Every State Government or Union territory, as the case may
be, shall, by notification in the Official Gazette, constitute a Board
to be called a Medical Board for the purposes of this Act to
exercise such powers and functions as may be prescribed by rules
made under this Act.
(2D) The Medical Board shall consist of the following, namely: (a) a
Gynaecologist; (b) a Paediatrician; ― (c) a Radiologist or
Sonologist; and (d) such other number of members as may be
notified in the Official Gazette by the State Government or Union
territory, as the case may be.
(3) In determining whether the continuance of a pregnancy would
involve such risk of injury to the health as is mentioned in sub-section
(2), account may be taken of the pregnant woman's actual or
reasonably foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of
eighteen years, or, who having attained the age of eighteen years, is a
mentally ill person, shall be terminated except with the consent in
writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be
terminated except with the consent of the pregnant woman."
8. It is also necessary to refer to the Medical Termination of
Pregnancy Rules, 2003, which reads as follows:
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"3A. Powers and functions of Medical Board.--For the purposes of
section 3,-- (a) the powers of the Medical Board shall be the
following, namely:- (i) to allow or deny termination of pregnancy
beyond twenty-four weeks of gestation period under sub-section
(2B) of the said section only after due consideration and ensuring
that the procedure would be safe for the woman at that gestation
age and whether the foetal malformation has substantial risk of it
being incompatible with life or if the child is born it may suffer from
such physical or mental abnormalities to be seriously handicapped";
The position of law can, therefore, be summarised thus:
9. Besides the above statutory safeguards, the Ministry of Health
and Family Welfare, Government of India, has issued a comprehensive
'Guidance Note for Medical Boards for Termination of Pregnancy
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beyond 20 weeks of Gestation', dated 14th August 2017. The Note
stipulates that it is the responsibility of the Medical Board to ascertain
whether the foetal abnormality is substantial enough to qualify as either
incompatible with life or associated with significant morbidity or
mortality of the child if born. Determining substantial foetal
abnormalities should be based on a thorough review of the patient's
medical records. The Medical Board should conduct additional
investigations as may be necessary. It should base its decision on
concrete medical evidence and expert evaluations, including reviewing
the available documents and performing additional diagnostic tests to
confirm the presence and extent of congenital abnormalities. The
objective of the Note is to ensure that the decision to terminate the
pregnancy is made with the utmost care and consideration of the
potential outcomes and quality of life of the child.
10. A three-judge Bench of the Hon'ble Supreme Court, in Suchita
Srivastava v. Chandigarh Admn. [(2009) 9 SCC 1], has held that the
right to make reproductive choices is a facet of Article 21 of the
Constitution and that the consent of the pregnant person in matters of
reproductive choices and abortion is paramount.
11. In XYZ v. State of Gujarat (2023 SCC Online SC 1573), the
Hon'ble Supreme Court held that the Medical Board or the High Court
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cannot refuse termination of pregnancy merely on the ground that the
gestational age is above the statutory prescription. It is held as follows:
"19. The whole object of preferring a Writ Petition under Article
226 of the Constitution of India is to engage with the
extraordinary discretionary jurisdiction of the High Court in
exercise of its constitutional power. Such a power is vested with
the constitutional courts and discretion has to be exercised
judiciously and having regard to the facts of the case and by
taking into consideration the relevant facts while leaving out
irrelevant considerations and not vice versa."
12. The Hon'ble Supreme Court in A.V. State of Maharashtra
[(2024) 6 SCC 327] has held as under:
"28. The powers vested under the Constitution in the High Court and
this Court allow them to enforce fundamental rights guaranteed under
Part III of the Constitution. When a person approaches the court for
permission to terminate a pregnancy, the courts apply their mind to
the case and make a decision to protect the physical and mental
health of the pregnant person. In doing so the court relies on the
opinion of the Medical Board constituted under the MTP Act for their
medical expertise. The court would thereafter apply their judicial
mind to the opinion of the Medical Board. Therefore, the Medical
Board cannot merely state that the grounds under Section 3(2-B) of
the MTP Act are not met. The exercise of the jurisdiction of the courts
would be affected if they did not have the advantage of the medical
opinion of the board as to the risk involved to the physical and mental
health of the pregnant person. Therefore, a Medical Board must
examine the pregnant person and opine on the aspect of the risk to
their physical and mental health.
29. The MTP Act has removed the restriction on the length of the
pregnancy for termination in only two instances. Section 5 of the MTP
Act prescribes that a pregnancy may be terminated, regardless of the
gestational age, if the medical practitioner is of the opinion formed in
good faith that the termination is immediately necessary to save the
life of the pregnant person. Section 3(2-B) of the Act stipulates that no
limit shall apply on the length of the pregnancy for terminating a
foetus with substantial abnormalities. The legislation has made a
value judgment in Section 3(2-B) of the Act, that a substantially
abnormal foetus would be more injurious to the mental and physical
health of a woman than any other circumstance. In this case, the
circumstance against which the provision is comparable is rape of a
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minor. To deny the same enabling provision of the law would appear
prima facie unreasonable and arbitrary. The value judgment of the
legislation does not appear to be based on scientific parameters but
rather on a notion that a substantially abnormal foetus will inflict the
most aggravated form of injury to the pregnant person........
xxxxxxxxx xxxxxxxxx xxxxxxxxx
32. This highlights the need for giving primacy to the fundamental
rights to reproductive autonomy, dignity and privacy of the pregnant
person by the Medical Board and the courts. The delays caused by a
change in the opinion of the Medical Board or the procedures of the
court must not frustrate the fundamental rights of pregnant people.
We therefore hold that the Medical Board evaluating a pregnant
person with a gestational age above twenty-four weeks must opine on
the physical and mental health of the person by furnishing full details
to the court".
13. As far as the present case is concerned, the Medical Board
report makes it clear that, if the child is delivered, the prognosis for
survival is poor and there is a high likelihood of severe morbidity.
Consequently, there is a decisive basis to hold that the first petitioner is
eligible to get her pregnancy terminated, irrespective of the gestation
age, in view of Section 3 (2-B) of the Act, as the foetus presents with
substantial abnormalities that the Medical Board has confirmed.
14. Learned counsel for the petitioner submits that if the baby is
born alive, the parents are ready and willing to bear the risk of taking
care of the baby and also ready to meet all the expenses.
15. After an elaborate consideration of the facts, the materials on
record and the well-settled principles of law on the subject, especially
considering the recommendations of the Medical Board, I am of the
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view that denying termination may only delay the inevitable and extend
the suffering of the family. The writ petition is to be disposed of by
directing to terminate the first petitioner's pregnancy.
In the aforementioned circumstances, I dispose of the writ petition
with the following directions:
a) The first petitioner shall appear before the Lifeline Hospital,
Adoor, the hospital of her choice, which is a higher accredited
medical centre with facilities for proper medical care, on
22.12.2025. The procedure shall be carried out under the
supervision of a competent Medical Officer deputed by the fifth
respondent. The said officer so deputed shall maintain a complete
record of the procedure performed on the first petitioner.
b) The Medical team of the Lifeline Hospital, Adoor shall, in their
discretion and best judgment, adopt the best procedure
recommended in the medical science to terminate the pregnancy
and save the life of the petitioner.
c) Before conducting the termination of pregnancy, the Medical Team
shall obtain a final scanning report, confirming the deformities of
the foetus.
d) If the foetus is born alive, the hospital shall render all the
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necessary assistance, including incubation and treatment at any
super-speciality, to ensure that the foetus survives. The baby shall
be offered the best medical treatment, and the petitioner shall take
full responsibility and bear the expenses for the baby.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
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APPENDIX OF WP(C) NO. 46749 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE CERTIFICATE OF MARRIAGE
DATED 11.12.2025 ISSUED BY THE LOCAL
REGISTRAR OF MARRIAGES, CHENNEERKARA GRAMA
PANCHAYAT
Exhibit P2 TRUE COPY OF THE REPORT DATED 08.11.2025
ISSUED BY THE DEPARTMENT OF RADIOLOGY AND
IMAGING, PRIME HEALTHCARE GROUP, DUBAI
Exhibit P3 TRUE COPY OF THE GROWTH SCAN REPORT DATED
03.12.2025 ISSUED BY THE PRIME HOSPITAL,
DUBAI
Exhibit P4 TRUE COPY OF THE FETAL ECHOCARDIOGRAPHY
REPORT DATED 11.12.2025 ISSUED FROM THE ASTER
MEDCITY, ERNAKULAM
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 26.06.2020 IN
W.P.(C) NO.11726 OF 2020 OF THIS HONOURABLE
COURT
