Anasuya Somu vs The Union Of India on 9 February, 2026

W.A. No. 329 of 2026

                                        1

                                                            2026:KER:11368


              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE K. NATARAJAN
                                        &
              THE HONOURABLE MR. JUSTICE JOHNSON JOHN
   MONDAY, THE 9TH DAY OF FEBRUARY 2026 / 20TH MAGHA, 1947
                             WA NO. 329 OF 2026
          AGAINST      THE   JUDGMENT       DATED   30.01.2026   IN   WP(C)
NO.3135 OF 2026 OF HIGH COURT OF KERALA

APPELLANT/S:

      1       ANASUYA SOMU
              AGED 28 YEARS, W/O.SOMUCHANDRAN, EDATHIL HOUSE,
              AYMANAM, KOTTAYAM, KERALA, PIN - 686 014.

      2       SOMUCHANDRAN
              AGED 37 YEARS, S/O.A.K.CHANDRASEKHARAN,
              EDATHIL HOUSE, AYMANAM, KOTTAYAM,
              KERALA, PIN - 686 014.

              BY ADVS.
              SRI.LIJI.J.VADAKEDOM
              SHRI.ATHUL V. VADAKKEDOM
              SMT.REXY ELIZABETH THOMAS
              SMT.ANCY DANIEL
RESPONDENT/S:

      1       THE UNION OF INDIA
              REPRESENTED BY ITS SECRETARY,
              MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
              SASTHRI BHAVAN, NEW DELHI, PIN - 110 001.

      2       THE STATE OF KERALA
              REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
              MINISTRY OF CHILD WELFARE,
              GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
              PIN - 695 001.
 W.A. No. 329 of 2026

                                       2

                                                                 2026:KER:11368


      3       THE DIRECTOR OF HEALTH SERVICES
              GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM,
              PIN - 695 035.

      4       THE DIRECTOR OF MEDICAL EDUCATION
              DIRECTORATE OF MEDICAL EDUCATION,
              MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM,
              PIN - 695 011.

      5       THE DISTRICT MEDICAL OFFICER-KOTTAYAM
              OFFICE OF THE DISTRICT MEDICAL OFFICER,
              KOTTAYAM, PIN - 686 002.

      6       SUPERINTENDENT
              MEDICAL COLLEGE HOSPITAL-KOTTAYAM,
              GANDHI NAGAR P.O., KOTTAYAM, PIN - 686 008.

      7       AMRITA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH
              CENTRE,
              REPRESENTED BY ITS MANAGING DIRECTOR,
              PONEKKARA, EDAPPALLY, ERNAKULAM.



OTHER PRESENT:

              SRI. T.K.VIPINDAS - SR. GOVERNMENT PLEADER,
              SMT. AMMU CHARLES- STANDING COUNSEL FOR AMRITA
              INSTITUTE.


       THIS     WRIT     APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
09.02.2026,        THE    COURT   ON   THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 W.A. No. 329 of 2026

                                      3

                                                         2026:KER:11368



                               JUDGMENT

(Dated this the 9th day of February, 2026)

K. NATARAJAN, J.

This Writ Appeal is filed by the appellants/petitioners in

W.P.(C)No.3135/2026 for setting aside the condition No.4 of

the direction passed by the learned Single Judge of this Court

vide judgment dated 30.01.2026.

2. We have heard the learned counsel for the

appellants, learned Senior Government Pleader appearing for

respondents 2 to 6 and also the learned counsel who

appeared for the Amrita Institute of Medical Sciences, Kochi.

3. We have perused the judgment passed by the

learned Single Judge of this Court, which reads as follows:-

"1. The sixth 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 medical science to terminate the pregnancy and save the life of the first petitioner.

2026:KER:11368

3. The petitioners shall file an undertaking authorising the sixth 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.

5. Before conducting the termination of the pregnancy, the Medical Board shall reconfirm the fetal abnormalities by performing a final scan.

6. The parties shall appear before the Superintendent of Medical College Hospital, Kottayam on 31.01.2026".

4. The learned counsel appearing for the appellants

contended that the 1st appellant approached the learned

Single Judge of this Court seeking medical termination of a

pregnancy that was 31 weeks + 3 days old, after it was found

that the foetus suffers from congenital abnormalities of the

brain and head, including features suggestive of

microcephaly, carrying a high likelihood of serious and lifelong

physical and neurological disabilities, as per the reports of the

hospitals produced herein as Exts.P4 to 6. After considering

the arguments, the learned Single Judge of this Court passed

2026:KER:11368

the impugned order permitting the medical team to conduct

the Medical Termination of Pregnancy (hereinafter referred to

as "MTP") and following all the procedure. However, the

learned Single Judge of this Court has observed that if the

foetus is born alive, the hospital shall render all necessary

assistance, including incubation and treatment at any super-

speciality hospital, if the foetus survives, all the treatment

expenses will be borne by the petitioners.

5. The learned counsel appearing for the appellants

brought to the notice of this Court regarding Section 3 (2-B)

of the Medical Termination of the Pregnancy Act, 1971

(hereinafter referred to as "MTP Act") and contended that as

per the circular of the Central Government, in V.c, where

stopping of foetal heart beat has been prescribed. The same

was not considered by the learned Single Judge of this Court.

Hence, prayed for allowing the appeal and permitting them to

go for the MTP as per the Regulation and circulars of the

Central Government.

2026:KER:11368

6. Per contra, the learned Government Pleader

submits that though they supported the judgment of the

learned Single Judge, but condition No.4 of the order is not

sustainable in view of the observation and judgment of the

learned Single Judge of this Court and prayed for the disposal

of the same.

7. During the pendency of the appeal, this Court

directed the appellant to undergo further medical test.

Accordingly, the petitioner No.1 underwent further medical

tests in Amrita Hospital on 07.02.2026. during which the

urgency of conducting an MTP was reaffirmed, wherein they

also recommended to induce iatrogenic fetal demise before

initiation of labour.

8. The medical document produced by the counsel for

additional respondent No.7 is placed on record.

9. The learned counsel for the appellants also relied

upon the judgment of the Division Bench of this Court in

similar circumstances.

2026:KER:11368

10. We have perused the judgments as well as the

document produced. Considering the entire documents and

Section 3 (2B) of the MTP Act, which is as under:-

"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."

11. In connection with Section 3 (2B) of the MTP Act,

the Government of India issued circulars

D.O.No.M.12015/58/2017-MCH dated 14.08.2017 and

06.08.2018 at V.c which is read as under :-

"V.c Stopping foetal heart beat :

In cases of pregnancy over 24 weeks of gestation, an ultrasound guided procedure maybe required so that foetus is not expelled/delivered alive. This is a skilled procedure and must be performed by an experienced Obstetrician or Foetal Medicine expert only. The Royal College of Obstetricians and Gynaecologists (RCOG) recommends 2-3 ml of strong (15% ) potassium chloride (KCI) injection in the foetal heart prior to termination. A repeat injection may be required if asystole has not occurred after 30-60 seconds. Asystole should be observed for at least two minutes and foetal demise should be confirmed by ultrasound scan after 30-60 minutes".

2026:KER:11368

Wherein it is categorically stated that in case of

pregnancy over 24 weeks of gestation, an ultrasound guided

procedure may be required so that foetus is not

expelled/delivered alive. Following the direction of this Court,

the petitioner underwent test; where abnormalities were

found by the Amrita Institute of Medical Sciences, they also

suggested for induce iatrogenic fetal demise before initiation

of labour.

12. In a similar circumstances, the Co-ordinate Bench

of this Court in Syeda Shazia Talath & Another v. Union

of India, [WA No.1611/2025] dated 03.07.2025 has held a

decision by relying upon the same circular and permitted for

doing an MTP by considering the V.c of the circular. Another

co-ordinate Bench in the case of XXX vs. Union of India in

WA No.477/2025 dated 12.03.2025 held as under:-

"4.In the said circumstances, we pass the following order and dispose of the matter as follows:

(1)The Medical Board of Kalamassery Medical College shall examine Annexure 1, the Medical Board report dated 5.3.2025, and determine whether a substantial foetal abnormality exists.

2026:KER:11368

(2) If such an abnormality is found, a certificate shall be issued. On the basis of such certificate, the appellant is permitted to approach any hospital of her choice for iatrogenic foetal demise.

(3) There shall be a direction to the Superintendent of the above Medical College to constitute a Medical Board either today or by tomorrow".

Therefore, the 1st appellant is required to undergo the

MTP procedure as stated above.

13. However, the learned Government Pleader submits

that although these facilities are available at Government

Medical College Hospital, Kottayam, but currently a section of

Doctors is on strike and it requires some time for arranging

the necessary procedures. Submission of the learned

Government Pleader is placed on record.

14. The co-ordinate Bench is also permitted that those

petitioners are allowed to undergo the said procedure before

the Amrita Institute of Medical Sciences.

15. The 1st appellant has undergone test in Amrita

Institute of Medical Sciences. Therefore, we also propose to

undergo an MTP at Amrita Institute of Medical Sciences,

Kochi.

2026:KER:11368

17. In view of the same, we propose to allow the

appeal.

Accordingly, the appeal is allowed in part.

i. The direction of the learned Single Judge at

condition No.4 is hereby set aside, and permitted

the petitioner No.1 to undergo an MTP as per V.c of

Annexure IV Circular and accordingly, we modified

condition Nos.3, 5 & 6 in paragraph No.14 of the

impugned judgment.

ii. We direct the 1st appellant shall undergo an MTP

at Amrita Institute of Medical Sciences, Kochi at

their own expenses.

iii. The Amrita Institute of Medical Sciences to

conduct the MTP immediately by following the

procedures if the appellants approach.

Sd/-

K. NATARAJAN, JUDGE

Sd/-

JOHNSON JOHN, JUDGE S.M.K.

2026:KER:11368

APPENDIX OF WA NO. 329 OF 2026

PETITIONER ANNEXURES

Annexure -I THE COPY OF THE JUDGMENT DATED 3.7.2025 IN W.A. NO. 1611/2025 BEFORE THIS HONOURABLE COURT Annexure -II THE COPY OF THE JUDGMENT DATED 12.3.2025 IN W.A. NO. 477 OF 2025 BEFORE THIS HONOURABLE COURT Annexure-III THE COPY OF THE ORDER DATED 14.3.2025 IN W.A. NO. 477 OF 2025 BEFORE THIS HONOURABLE COURT Annexure -IV THE COPY OF THE GOVERNMENT OF INDIA GUIDELINES MOHFW D.O NO.

M12015/58/2017-MCH DATED 14.8.2017 ALONG WITH THE DIRECTIVE DATED 6.8.2018 AND THE GUIDANCE NOTE ISSUED BY THE 1ST RESPONDENT UNION OF INDIA (MARKED AS ANNEXURE 4 IN ANNEXURE-I JUDGMENT)