Citation : 2026 Latest Caselaw 1617 Ker
Judgement Date : 16 February, 2026
2026:KER:13739
WP(C) NO. 5249 OF 2026
:-1-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 16TH DAY OF FEBRUARY 2026 / 27TH MAGHA, 1947
WP(C) NO. 5249 OF 2026
PETITIONER/S:
1 MERIN TREESA JOSE
AGED 32 YEARS
, W/O. ANTONY JOSEPH, CHAMPANOOR KOCHUPARAMBIL HOUSE,
NEDUMKUNNAM, KOTTAYAM, PIN - 686542
2 ANTONY JOSEPH
AGED 38 YEARS
S/O. MA PAPPACHAN, MOONJELY HOUSE, SREEMOOLANAGARAM
P.O, ERNAKULAM, PIN - 683580
BY ADVS.
SRI.S.K.ADHITHYAN
SMT.SHAHINA NOUSHAD
SHRI.KRISHNA S. KARUNAKARAN
SHRI.JAI PRAKASH CHOUDHARY
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, NEW DELHI, PIN - 110001
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY
WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 GOVERNMENT MEDICAL COLLEGE HOSPITAL
2026:KER:13739
WP(C) NO. 5249 OF 2026
:-2-:
KOTTAYAM, REPRESENTED BY ITS MEDICAL SUPERINTENDENT,
GANDHI NAGAR, KOTTAYAM, PIN - 686008
4 HEAD OF DEPARTMENT
DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, GOVERNMENT
MEDICAL COLLEGE HOSPITAL, KOTTAYAM, PIN - 686008
5 THE PERMANENT MEDICAL BOARD
REPRESENTED BY MEDICAL SUPERINTENDENT, GOVERNMENT
MEDICAL COLLEGE HOSPITAL, KOTTAYAM, PIN - 686008
OTHER PRESENT:
SHAMEER P.M. - G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2026:KER:13739
WP(C) NO. 5249 OF 2026
:-3-:
JUDGMENT
The first petitioner the wife, who has been seeking medical
termination of 25 weeks old pregnancy, after having found that
the foetus suffers from fatal abnormalities including issues to the
heart like large Cono Ventricular Septal Defect(VSD) associated
with double outlet right ventricle. On 03.02.2026, fetal
echocardiography done at Amrita Institute of Medical Sciences
and Research Centre, Ernakulam, evidenced by Ext.P1 report, in
which, it was found that the foetus was also diagnosed with
pulmonary atresia, which is congenital heart defect where the
pulmonary valve is blocked preventing blood flow from the right
ventricle to the lungs. There was also absence of the aortic arch
as the actions of the same are generally considered abnormal.
The foetus was also diagnosed with Tetralogy of Fallot which
means that the baby's heart over grows during pregnancy.
According to the petitioners, as per Ext.P1, the foetus is suffering
from major anomalies and if at all, the child is born alive, the
quality of life would be so poor that even movement would not be
possible. The petitioners, therefore, seek for a direction to the 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-4-:
3rd respondent to permit the 1 st petitioner to undergo medical
termination of pregnancy.
2. Heard the learned counsel for the petitioners, the
learned CGC and the learned Government Pleader.
3. When the writ petition came up for consideration on
11.02.2026 this Court directed the third respondent to constitute
a Medical Board for the purpose of assessing the following:-
(i) whether continuance of the 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?
4. Today, the learned Government Pleader made available
to this Court the report of the Medical Board dated 13.02.2026 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-5-:
comprising of Professor & HOD Department of OBG, Professor
(CAP) Department of OBG, Foetal Medicine Assoc. Prof. (CAP)
Dept. Of OBG, Assistant Professor Dept. Of Radio Diagnosis,
Assistant Professor Dept. Of Cardiology, Assistant Professor,
Department of Paediatrics (Neonatology Dept. Of Paediatrics),
Associate Professor (CAP) Department of Psychiatry of the
Government Medical College Hospital, Kottayam. The conclusion
and final opinion of the Medical Board are as follows:-
Conclusion:
SL.No. Report Opinion on the findings
01. Merin Treesa Jose, 33 yrs. a. Continuation of pregnancy Department G3P1L1A1, LMP: 12/08/2025, is not likely to produce of OBG: EDC:19/05/2026 POG: 26 w 3 days. increased risk to her life or H/o Hypothyroidism on Thyronorm grave injury to her physical 100microgram, H/o ANC from Thiruvalla health Medical Mission and detected to have Cardiac anomalies. Detailed Echo was b. Evaluated the patient and done at Amrita Institute of Medical fetal echo study done at AIMS Sciences. USG on 03/02/2026 KOCHI. Study suggestive of TOF WITH PULMONARY TOF, Large VSD, Pulmonary atresia ATRESIA with confluent Consulted 03 Unit, Fetal Medicine pulmonary arteries. This Department of GMC, Kottayam. condition is not incompatible with life and child will require O/E: Pulse rate :86/minute, BP106/72 multiple high risk staged mmHg, Ht; 162 cm, Wt: 73 kg, P/A-26 W, procedures for its survival, Fetal Parts + Final Cardiac Diagnosis and also there is chance of surgical revision in adulthood Tetralogy of Fallot, Large conoventricular if need arises.
VSD routable to aorta, Pulmonary atresia with confluent pulmonary arteries, c. Due to the advanced Vertical ductus arising from undersurface gestational age medical of arch supplying the pulmonary arteries, methods to induce Left arch, no coarctation / MAPCAs, Sinus contractions may fail which rhythm. will lead to hysterotomy.
2026:KER:13739 WP(C) NO. 5249 OF 2026
:-6-:
USG on- 13/02/2026:
SLIUGS corresponding to 24 W 4 D, Conotruncal VSD with small sized pulmonary artery and non visualization of RVOT- likely pulmonary atresia.
02. Dept This patient Merin Treesa g2a1 at 26week This is a critical congenital OBG-Fetal 3d of gestation has been diagnosed with heart defect which requires Medicine TOF WITH PULMONARY ATRESIA on staged surgeries and multiple anomaly scan confirmed BY echo BY interventions after birth was PEDIATRIC CARDIOLOGIST FROM AIIMS conveyed to the couple COCHIN
03. SLIUG with GA by USG-24 weeks 4 days Pulmonary atresia with VSD Dept of Conoventricular VSD Pulmonary atresia Decision on termination as Radio with hypoplastic main pulmonary artery. per cardiologist opinion Diagnosis
04. Dept. Of Ms. Merin Treesa Jose, 33 years old Based on the current fetal Cardiology female, G3P1L1A1, LCB-3 years previous echo from AIMS on LSCS, Overt hypothyroidism, with 25 03.02.2026, child once born weeks current pregnancy, detected to may require serial have congenital cardiac anomaly for the medical/surgical interventions fetus at 20weeks anomaly scan. Diagnosed including postnatal PG to have Tetralogy of Fallot, large infusion, PDA stenting, BT conoventricular VSD, Pulmonary atresia shunt followed by definitive with confluent pulmonary arteries, vertical intracardiac repair. In those ductus with ductus dependant pulmonary cases requiring a circulation, no coarctation of aorta or transannular patch repair, MAPCAs from Amrita Institute of Medical future risk of development of Sciences, Kochi pulmonary regurgitation and repeat intervention in adulthood is also anticipated.
At present, such an anatomy is not incompatible with life and is expected to have good surgical outcome in excess of > 95% survival in experienced centres. It is reported to have > 90% 1 year survival and >80% 10 years survival based on available literature. In view of the anticipated need for multiple procedures and the financial and emotional burden on the family, it may be allowed to proceed with MTP if family is insisting on the same.
05. G3PILIA1, 33 yr female, Merin Treesa This condition is not Dept. of Jose, 26 wk 3 days GA, with fetal echo incompatible with life with 10 pediatrics showing Tetrology of Fallot with year survival rate of TOF with 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-7-:
pulmonary atresia in fetus. absent pulmonary valve of 73 cases operated in AIIMS Delhi is 92% (Talwar et al, 2016) and western literature reporting 30 yr survival of 78% (Blais et al, 2021). The survival is decreased to 60% if genetic component is present (not evaluated in present case). The baby may require multiple staged surgeries. The likelihood of developmental delay is less if the baby is born at term gestation. Since this cardiac condition compatible with life and the operation is being done at many centres in Kerala under Kerala government scheme:
Hridyam. Hence termination of pregnancy is not advisable at this stage from the baby's perspective unless the emotional and economic burden of these multiple surgeries causes grievous harm to parent's mental health.
06. Dept. of Evaluated the mental status of Merin As per the mental status Psychiatry Treesa Jose, 33yrs. She is conscious, alert examination of Merin Treesa and oriented to time place and person. Jose, it is inferred that the She is cooperative and answers questions continuation of pregnancy is relevantly and coherently. No disorder of likely to be associated with stream, form or possession is elicited. No significant emotional distress delusions or hallucinations are elicited. to her mental health. Mrs. Merin Treesa Jose became tearful while describing the details of the health status of the fetus and the anomalies reported in the Fetal Scan in her own words. Thought content has features of grief associated with the current stressor. No other core depressive cognitions are elicited.
Mrs.Merin Treesa Jose reports significant anxious cognitions regarding continuation of her pregnancy. She reports that she finds it not possible to continue the pregnancy as it causes very severe emotional distress to her while 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-8-:
evaluating her current and future life. She does not report of any guilt ideations regarding her wish to terminate the pregnancy and says that it is the best course of action for her and her fetus.
Cognitive functions are within normal limits. Clinical assessment of intelligence indicate above average intellectual functioning. She has adequate judgment and insight regarding her present health condition and that of the fetus. She is able to assess appropriately the medical information provided to her by doctors regarding the health of her fetus.
07. Dept. of Ms. Merin Treesa Jose, 33 years old Evaluated the patient and Cardiothora female, G3PILIA1, LCB- 3 years previous fetal echo study done at AIMS cic and LSCS, Overt hypothyroidism, with 25 KOCHI. Study suggestive of Vascular weeks current pregnancy, detected to TOF WITH PULMONARY Surgery have congenital cardiac anomaly for the ATRESIA with confluent fetus at 20weeks anomaly scan. Diagnosed pulmonary arteries. This to have Tetralogy of Fallot, large condition is not incompatible conoventricular VSD, Pulmonary atresia with life and child will require with confluent pulmonary arteries, vertical multiple high risk staged ductus with ductus dependant pulmonary procedures for its survival, circulation, no coarctation of aorta or and also there is chance of MAPCAs from Amrita Institute of Medical surgical revision in adulthood Sciences, Kochi if need arises. Most of these procedures are done under Hridyam project with reasonable survival rates.
However it will be a huge financial and emotional burden on parents and family.
After discussing with the parents, they are not willing to undergo such an ordeal and in this situation MTP may be allowed from the humanitarian perspective.
6. Opinion by Medical Board for termination of pregnancy:
a) Allowed: Allowed
b) Denied:
2026:KER:13739 WP(C) NO. 5249 OF 2026
:-9-:
Justification for the decision: The continuation of pregnancy is likely to be associated with significant emotional distress to her mental health.
5. 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.
6. 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 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-10-:
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 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 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-11-:
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."
7. It is also necessary to refer to the Medical Termination of
Pregnancy Rules, 2003, which reads as follows:
"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";
8. The position of law can therefore be summarised thus:
2026:KER:13739 WP(C) NO. 5249 OF 2026
:-12-:
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 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 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-13-:
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 cannot refuse termination of pregnancy merely on
the ground that the gestational age is above the statutory 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-14-:
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 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-15-:
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 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, Ext.P1,
together with Medical Board reports, it is clear that there exists 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-16-:
considerable reason that the baby will be born with substantial
foetal abnormalities if born alive. Further the Medical Board has
opined that if the pregnancy continues and a baby is born,it
would suffer from serious cardiac abnormalities which may
require surgery and follow up treatment. The foetus suffers from
fatal abnormalities including issues to the heart like large Cono
Ventricular Septal Defect(VSD) associated with double outlet
right ventricle. It was also found that the foetus was also
diagnosed with pulmonary atresia, which is congenital heart
defect where the pulmonary valve is blocked preventing blood
flow from the right ventricle to the lungs. There was also
absence of the aortic arch as the actions of the same is generally
considered abnormal. The foetus was also diagnosed with
Tetralogy of Fallot which means that the baby's heart over grows
during pregnancy.
14. 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 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-17-:
the Medical Board has confirmed.
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 third
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 third 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 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-18-:
judgment, adopt the best procedure recommended in
the medical science to terminate the pregnancy and
save the life of the first petitioner.
3. The petitioners shall file an undertaking authorising
the third 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 17.02.2026
Sd/-
SHOBA ANNAMMA EAPEN JUDGE STB 2026:KER:13739 WP(C) NO. 5249 OF 2026
:-19-:
APPENDIX OF WP(C) NO. 5249 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE REPORT NO. 2945950 DATED 3/2/2026 ISSUED BY AIMS, EDAPPALLY Exhibit P2 TRUE COPY OF THE OP CARDS ISSUED BY ANTENATAL CLINIC AND FAMILY PLANNING CLINIC OF THE 3RD RESPONDENT DATED 4/2/2026 Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 4/2/2026 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE JUDGMENT IN X VS. UNION OF INDIA AND OTHERS 2025: KER: 20965 OF THIS HON'BLE COURT
Publish Your Article
Campus Ambassador
Media Partner
Campus Buzz
LatestLaws.com presents: Lexidem Offline Internship Program, 2026
LatestLaws.com presents 'Lexidem Online Internship, 2026', Apply Now!