Kerala High Court
Amitha Vasu vs Union Of India on 29 May, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947
WP(C) NO. 18336 OF 2025
PETITIONERS:
1 AMITHA VASU
AGED 29 YEARS
DAUGHTER OF OMANA VASU, RESIDING AT 'VALLANARA', S
ADUVASSERY, KUNNUKARA, ERNAKULAM, PIN - 683578
2 ANIL
AGED 34 YEARS
SON OF VELAYUDHAN, RESIDING AT 'KUNNATHUPARAMBIL',
ANNAMADA PO, VENNOORPADAM, KALLUR, THRISSUR, PIN -
680741
BY ADVS.
AKASH S.
GIRISH KUMAR M S
RICHU THERESA ROBERT
RESPONDENTS:
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
5 THE SUPERINTENDENT
THE GOVERNMENT MEDICAL COLLEGE AND HOSPITAL, MEDICAL
COLLEGE JN, MAVOOR ROAD, KOZHIKODE,
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-2-:
FIFTH RESPONDENT IS REPLACED WITH "THE SUPERINTENDENT,
GOVERNMENT MEDICAL COLLEGE, ERNAKULAM, HMT ROAD, HMT
COLONY, NORTH KALAMASSERY, KERLA 683503" AS PER ORDER
DATED 20.05.2025 IN IA 01/2025 IN THE WP(C), PIN -
673008
6 AMRITA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH
CENTRE
REPRESENTED BY ITS MANAGING DIRECTOR, PONEKKARA,
ERNAKULAM, PIN - 682041
BY ADVS.
ALKA WARRIAR
Ammu Charles
K.MANOJ CHANDRAN(K/264/1998)
BY GOVT. PLEADER SMT.SONY.K.B.
BY DSGI SMT.ALKA WARRIOR
FOR R6 BY ADV.SMT.AMMU CHARLES
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.05.2025, THE COURT ON 29.05.2025 DELIVERED THE FOLLOWING:
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-3-:
JUDGMENT
The petitioners are wife and husband, who have
been seeking medical termination of 31- weeks- old
pregnancy, after having found that there is a high
possibility that the foetus suffering from a rare genetic
disorder, tuberous sclerosis, especially after the scan at the
30 weeks of gestation revealed that multiple tumours have
developed in the heart and brain of the foetus. The
petitioners are also parents of an 18 months old boy.
According to the petitioners, as per Exts.P5 and P6 scan
reports, the doctors stated that the condition is fatal and
has poor prognosis, and according to them, even if the
foetus survives, it is highly likely to develop conditions such
as seizures, intellectual disability, developmental delay,
behavioural problems, lung disease and kidney disease. The
petitioners, therefore, seek for a direction to the
respondents to permit the 1st petitioner to undergo medical
termination of pregnancy.
2. Heard the learned counsel for the petitioners, the
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-4-:
learned DSGI and the learned Government Pleader.
3. When the writ petition came up for consideration
on 20th May,2025, this Court directed the fifth respondent
to constitute a Medical Board for the purpose of assessing
the following:-
(i) whether continuance of the first petitioner's
pregnancy would involve risk to her life or grave
injury to her physical or mental health,
(ii) whether there is a substantial risk that if the child
was born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped and if so,
the nature of abnormalities and
(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.
On 23.05.2025, the learned Government Pleader made
available this Court the report of the Medical Board dated
22.05.2025 comprising of Assistant Professor of Obstetrics and
Gynaecology Department, Associate Professor of
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-5-:
Radiodiagnosis Department, Assistant Professor of Paediatrics
Department and Assistant Professor of Psychiatry Department
of the Government Medical College Hospital. The conclusion
and final opinion of the Medical Board are as follows:-
Conclusion:
I. The continuation of pregnancy does not add any grave
injury to the physical and mental health of the mother
in the current examination other than what occurs in a
normal pregnancy. The mother can have psychological
distress regarding the baby's anomalies which is
expected.
II. If the pregnancy is terminated at this gestational age
there is very high possibility that the baby is born alive
and will undergo all the complications of prematurity.
According to the present USG Scan of the foetus and
foetal Medicine opinion this is highly suggestive of
Tuberous Sclerosis which can cause substantial
neurological deficit including severe recurrent seizure
and its sequelae and neurodevelopmental disorders to
the baby if born alive.
III. There is danger to the life of pregnant mother if
permitted to terminate the pregnancy preterm.
Final Opinion
Considering the added risk for the mother and baby if
pregnancy is terminated preterm, the board is of collective
opinion that there is no definite medical indication for
termination of pregnancy at this gestational age. The
pregnancy may be followed up with regular antenatal check
up and serial ultrasound scan.
On 26.05.2025 also, this Court further found that it is
necessary to obtain a report from Neuro Surgeon as well.
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-6-:
Accordingly, the Medical Board was directed to file an
additional report and on 27.05.2025, when the case was taken
up, the learned Government Pleader made available to me the
additional report of the Neuro Surgeon wherein the opinion of
the Doctor is as follows:-
"History and antenatal scan findings are noted. USG Scan
findings (12/05/2025); multiple echogenic cortical tubers in
the fetal brain and multiple Cardiac rhahdomyomas.
These are highly suggestive of a genetic disorder called
Tuberous Sclerosis. This disease has a wide spectrum of
presentation including seizure, mild to severe Neuro
developmental delay, Cardiac arrhythimas and renal or
pulmonary failure. Less severe cases of Tuberous Sclerosis
can experience few symptoms and can have a normal life
span.
Considering the findings of multiple cortical tubers there is
possibility of Neurological risk to the baby including early
onset recurrent seizures and neurodevelopmental
anomalies."
The Medical Report reveals that the first petitioner has
completed 32 weeks + one day gestation as on 22.05.2025.
Learned counsel for the petitioners submits that the petitioners
are prepared to proceed with the termination of pregnancy even
by 'C' section at the Government Medical College, Ernakulam.
He placed reliance on the Government of India guidelines that
are referred to by the Honourable Supreme Court in A (Mother
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-7-:
of X) v. State of Maharashtra [(2024) 6 SCC 327] to support his
submission.
4. 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.
5. 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
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-8-:
caused by such pregnancy may be presumed to constitute a
grave injury 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."
6. It is also necessary to refer to the Medical Termination of
Pregnancy Rules, 2003, which reads as follows:
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-9-:
"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";
7. The position of law can therefore be summarised thus:
8. Besides the above statutory safeguards, the Ministry of
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-10-:
Health and Family Welfare, Government of India, has issued a
comprehensive 'Guidance Note for Medical Boards for
Termination of Pregnancy 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.
9. A three-judge Bench of the Hon'ble Supreme Court, in
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-11-:
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.
10. 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 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."
11. 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
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-12-:
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 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 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
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-13-:
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".
12. As far as the present case is concerned, Exts.A5 and
A6, together with Medical Board reports, it is clear that there
exists considerable reason that the baby will be born with
neurological abnormalities if born alive. Further the Medical
Board has opined that since the patient has completed 31
weeks of gestation, there remains a possibility that the infant
could be delivered alive.
13. 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. Since, the first petitioner is in the advanced stage of
pregnancy, it may not be able to carry out the induction of
labour; thus, the first petitioner would have to undergo a
caesarean section for this delivery. But, this procedure carries
the inherent risk of the baby being born alive.
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-14-:
15. Learned counsel for the petitioners submits that if the
baby is born alive, the parents are ready and willing to bear the
risk of taking care of the patient and baby and also ready to
meet all the expenses.
16. 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 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 the fifth
respondent to terminate the first petitioner's pregnancy.
In the aforementioned circumstances, I dispose of the writ
petition by passing the following directions:
1. The fifth respondent shall take immediate measures for
constituting a Medical Team to conduct the termination of
the first petitioner's pregnancy, on production of a copy of
this judgment.
2. The Medical Team shall, in their discretion and best
judgment, adopt the best procedure recommended in the
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-15-:
medical science to terminate the pregnancy and save the
life of the first petitioner.
3. The first and second petitioners shall file an undertaking
authorising the fifth respondent to terminate the pregnancy
at their risk and costs.
4. If the foetus is born alive, the hospital shall render all the
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 petitioners shall take full responsibility and bear the
expenses for the baby.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
MBS/
2025:KER:37130
WP(C) NO. 18336 OF 2025
:-16-:
APPENDIX OF WP(C) 18336/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AADHAAR CARD BEARING NO.
6538 8818 8930 OF THE 1ST PETITIONER
Exhibit P2 TRUE COPY OF THE AADHAAR CARD BEARING NO.
6192 9302 7612 OF THE 2ND PETITIONER
Exhibit P3 TRUE COPY OF THE OBSTETRIC ULTRASOUND SCAN
REPORT CONDUCTED ON THE 1ST PETITIONER,
DATED 04.01.2025, CONDUCTED AT DDIC SCAN &
DIAGNOSTICS, ALUVA
Exhibit P4 TRUE COPY OF THE SCAN FOR FOETAL ANOMALY
MORPHOLOGICAL DETECTION CONDUCTED ON THE 1ST
PETITIONER, DATED 06.03.2025, CONDUCTED AT
CHALAKUDY SCANS DIAGNOSTICS & POLY CLINIC,
CHALAKUDY
Exhibit P5 TRUE COPY OF THE ANTENATAL DOPPLER ULTRA
SOUND SCAN AT 30 WEEKS OF GESTATION AT
CHALAKUDY SCANS DIAGNOSTICS & POLY CLINIC,
CHALAKUDY DATED 09.05.2025
Exhibit P6 TRUE COPY OF THE 2/3 TRIMESTER SCAN REPORT
OF THE 1ST PETITIONER, CONDUCTED AT THE 6TH
RESPONDENT HOSPITAL DATED 12.05.2025
