[Cites 9, Cited by 0]
Kerala High Court
Xxxx vs Union Of India on 23 January, 2026
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WP(C) No.2019/2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947
WP(C) NO. 2019 OF 2026
PETITIONER:
XXXX
D/O. XXXX, RESIDING AT XXXX, XXXX,
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SMT.S.SHEEBA
SHRI.K.A.ABHILASH
SRI.VINOD S. PILLAI
SHRI.MOHAMMED THAYIB N.M.
SMT.NAYANA VARGHESE
SMT.RIA VARGHESE
SHRI.JERRY PETER
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, NEW DELHI,, PIN - 110001
2 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND
FAMILY WELFARE DEPARTMENT, ROOM NO. 603, 6TH FLOOR,
ANNEXE - II, SECRETARIAT, STATUE JUNCTION,
THIRUVANANTHAPURAM GENERAL.P.O., THIRUVANANTHAPURAM
DISTRICT,, PIN - 695001
3 THE SUPERINTENDENT
GOVERNMENT MEDICAL COLLEGE (VANDANAM), ALAPPUZHA
DISTRICT,, PIN - 688005
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WP(C) No.2019/2026
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4 THE DISTRICT MEDICAL OFFICER
GENERAL HOSPITAL COMPOUND, IRON BRIDGE. P.O. ALAPPUZHA,
PIN - 688011
BY ADV SMT.LAKSHMI MEENAKSHI P.R., CGC
OTHER PRESENT:
SRI. SHAMEER P M -GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.01.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) No.2019/2026
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JUDGMENT
The petitioner is seeking medical termination of 30-weeks-old
pregnancy after having revealed multiple anomalies to the foetus, viz.,
Ventriculomegaly with Septal Agenesis associated with severe brain
abnormalities, neurodevelopmental risks, visual impairment and
endocrine dysfunction. According to the petitioner, on the basis of
Ext.P1 scanning report which revealed that the foetus is suffering from
severe brain abnormalities and congenital anomalies, the doctors
advised medical termination of pregnancy. The petitioner, therefore,
seeks for a direction to the respondents to permit her to undergo
medical termination of pregnancy.
2. Heard the learned counsel for the petitioner and the learned
Government Pleader.
3. When the writ petition came up for consideration on 19.01.2026,
this Court directed the fourth 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
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suffer from such physical or mental abnormalities as to be
seriously handicapped and if so, the nature of abnormalities; and,
C. Whether, having regard to the advanced stage of pregnancy, is
there 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 before
this Court the report of the Medical Board dated 22.01.2026 comprising
of the Associate Professor (Cadre) of the Department of Obstetrics and
Gynaecology, the Professor of the Department of Forensic Medicine, the
Professor of the Department of Radiodiagnosis, the Professor of the
Department of Psychiatry and the Associate Professor of the
Department of Paediatrics of the Government T.D. Medical College
Hospital, Alappuzha. The Medical Board recommended termination of
pregnancy, as follows:
"14. Additional findings and observations:
In addition to the previous USG from Athira Scan
1. Corpus Callosum not well identified suggesting agenesis
2. Colpocephaly noted with mild pronouncement of 3rd
ventricle
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15. Physical fitness for termination: Yes
16. Recommendation by committee for termination:
a. Recommended: After examining the patient and
reviewing the records of the patient, the board has come to the
opinion that the pregnancy may be terminated after inducing fetal
demise in a centre with fetomaternal expertise for performing the
procedure as per guidelines issued in D.O letter no:
M.12015/58/2017-MCH dated 14th August 2017.
Key recommendation of the panel (if any) with justification
The procedure shall be done in an appropriate centre with
expertise in fetomaternal medicine after proper counselling of the
patient."
5. Learned counsel for the petitioner submits that the petitioner is
prepared to proceed with the termination of pregnancy even by 'C'
section at the Government T.D. Medical College, Alappuzha. He 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 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
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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 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
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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:
"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:
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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
abnormalities should be based on a thorough review of the patient's
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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 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
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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 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........
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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, from Ext.P1 report together
with the Medical Board report, it is clear that there exists considerable reason
that the baby will be born with multiple anomalies if born alive.
14. Consequently, there is a decisive basis to hold that the 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.
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 view that denying
termination may only delay the inevitable and extend the suffering of the
petitioner. The writ petition is to be disposed of by directing the third
respondent to terminate the petitioner's pregnancy.
In the aforementioned circumstances, I dispose of the writ petition by
passing the following directions:
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A. The third respondent shall take immediate measures for constituting a
Medical Team to conduct the termination of the petitioner's pregnancy
as recommended by the medical board, on production of a copy of this
judgment.
B. 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.
C. The petitioner shall file an undertaking authorising the third respondent
to terminate the pregnancy at her risk and costs.
D. Before conducting the termination of pregnancy, the Medical Team shall
obtain a final scanning report, confirming the deformities of the foetus.
E. 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 petitioner shall take full responsibility and
bear the expenses for the baby.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
