[Cites 9, Cited by 0]
Kerala High Court
Anasuya Somu vs The Union Of India on 30 January, 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 30TH DAY OF JANUARY 2026 / 10TH MAGHA, 1947
WP(C) NO. 3135 OF 2026
PETITIONERS:
1 ANASUYA SOMU
AGED 28 YEARS
W/O.SOMUCHANDRAN, EDATHIL HOUSE, AYMANAM, KOTTAYAM,
KERALA-, PIN - 686014
2 SOMUCHANDRAN
AGED 37 YEARS
S/O.A.K.CHANDRASEKHARAN, EDATHIL HOUSE, AYMANAM,
KOTTAYAM, KERALA-, PIN - 686014
BY ADVS.
SRI.LIJI.J.VADAKEDOM
SHRI.ATHUL V. VADAKKEDOM
SMT.REXY ELIZABETH THOMAS
SMT.ANCY DANIEL
RESPONDENTS:
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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4 THE DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE.
P.O., THIRUVANANTHAPURAM, PIN - 695011
5 THE DISTRICT MEDICAL OFFICER-KOTTAYAM
OFFICE OF THE DISTRICT MEDICAL OFFICER-KOTTAYAM,
KOTTAYAM, PIN - 686002
6 SUPERINTENDENT
MEDICAL COLLEGE HOSPITAL-KOTTAYAM, GANDHI NAGAR P.O.,
KOTTAYAM, PIN - 686008
OTHER PRESENT:
SRI. SHAMEER P M -GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The petitioners, who are husband and wife, have been
seeking medical termination of 31 weeks plus 3 days old
pregnancy, after having 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 disability. According to the
petitioners, Exts.P4 to P6 scan reports reveal that the head and
brain of foetus are affected by serious developmental
abnormalities. The petitioners, therefore, seek for a direction to
the respondents to permit the petitioner to undergo medical
termination of pregnancy.
2. Heard the learned counsel for the petitioners, the learned
DSGI and the learned Government Pleader.
3. When the writ petition came up for consideration on
27.01.2026, this Court directed the sixth 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
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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.
Today, the learned Government Pleader made available this Court
the report of the Medical Board dated 29.01.2026 comprising of
Professor (CAP) of OBG department, Associate Professors of
Department of Neuro Medicine and Neuro Surgery, and Assistant
Professors of Department Radio Diagnosis and Pediatrics
Department, of the Government Medical College Hospital,
Kottayam. The conclusion and final opinion of the Medical Board
are as follows:-
Sl.No. Report Opinion on the findings
01 ANASUYA SOMU,28 yrs 4a.Continuation of the
Dept. of Primi LMP:2.6.2025, EDC: pregnancy will not increase
OBG 9.03.2026CEDC: 24.3.2026, POG: the risk to her life or
32W 1 day.? grievous injury to her
Overt diabetic from 16 weeks, physical health.
ANCs at Mandiram Hospital 20 4b. Answered by
weeks, after that ANC at Caritas Neurologist and
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Hospital, USG On 16.01.2026 Paediatrician.
CNS B/L Ventriculomegaly HC 4c. She will require
5*h Centile abnormal gyration induction of labour which
pattern.Reviewed at Amrutha causes more risk to the
Fetal Medicine department and mother when compared to
Medical College, Kottayam, spontaneous
confirmed the same findings. labour .
O/E: Pulse rate :82 beats /minute, Induction of labour at this
BP 114 / 92 mmHg, Ht; 154 cm, gestational age may not
Wt: 95.2 kg, Period of gestation : always be successful and
32.1 weeks may end up in caesarean
Obstetric examination: section which may again
Uterus 32 weeks, cephalic increase the maternal risk.
presentation, Right occipito
anterior position, liquor
adequate, Foetal heart sounds:
140 bpm USG on 29/01/2026:
SLIUF of gestational age 30
weeks 3 days in cephalic
presentation, increased AFI is
22.37cm.,Fetal microcephaly
with irregular lateral ventricles
and intraventricular synechiae,
abnormal cerebral gyrations-
Possibly sequae to intrauterine
infection, Talipes both lower
limbs
02 Antenatal USS of Anasuya Somu, Antenatal USS of Anasuya
Dept. of 28 yr, was done on 29.01.2026 Somu, 28 yr, was done on
Radio for confirmation of previous USS 29.01.2026 for
Diagnosis
& Fetal MRI findings, who came confirmation of previous
for termination of pregnancy. USS & Fetal MRI findings,
USS findings: SLIUF of who came for termination
gestational age 30 weeks 3 days of pregnancy. USS findings:
in cephalic presentation, Fetal SLIUF of gestational age 30
head showed microcephaly with weeks 3 days in cephalic
irregular lateral ventricles, presentation, Fetal head
intraventricular synechiae, showed microcephaly with
abnormal cerebral gyrations- irregular lateral ventricles,
Possibly sequelae to intrauterine intraventricular synechiae,
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infection, bilateral Talipes, liquor abnormal cerebral
increased. gyrations-
Possibly segulae to
intrauterine infection,
bilateral Talipes, liquor
increased.
03. Anasuya Somu, 28 yr with 32 wk A. To be answered by
Dept. of +2 days, primigravida with obstetrician
Paediatr microcephaly, lissencephaly, B. B. Baby may have mental
ics dysgenetic corpus callosum, and physical handicaps if
irregular lateral ventricles, born: the extent of which
intraventricular synechiae, CTEV: cannot be predicted at
likely intrauterine infection/ present. Terminating the
genetic. pregnancy prematurely will
add to the mental and
physical handicaps due to
complications of
prematurity. With the
present weight of 2 Kg the
baby if born will have
spontaneous breathing
efforts and heart rate. The
further management of
baby will be decided after
taking parents into
consultation.
C. To be answered by
obstetrician
04. Anasuya Somu, 28 yrs for opinion Answer to QNo-4a- should
Dept. of of continuance of Pregnancy. be sought from
Neuro Primi gravid Treating obstetrician.
Medicine Gestation - 31 weeks past. 4b.The anomalies-
Antenatal Sonogram -5th month Microcephaly with
Congenital Talipes Equino Varus. irregular lateral ventricles
Repeat Antenatal sonogram done and intraventricular
at 29.01.2026 at GMC, Kottayam synechiae
(twice done at two separate abnormal cerebral
Private Hospitals gyrations may possibly
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anomaly). Showed Microcephaly cause physical and mental
with Irregular lateral ventricular, abnormalities as to be
Intraventricular synechiae, seriously handicapped
abnormal cerebral gyrations 4c. The question should be
possibly a sequelae to antenatal directed to treating
infections. obstetrician.
Answer to QNo-4a- should be
sought from treating obstetrician.
4b. The anomalies - Microcephaly
with irregular lateral ventricles
and
intraventricular synechiae
abnormal cerebral gyrations may
possibly cause physical and
mental abnormalities as to be
seriously.
Handicapped
4c. The question should be
directed to treating obstetrician.
05. Antenatal USG on 29/01/2026: at Considering the fact that
Dept. of Govt.Medical College, Kottayam Antenatal
Neuro by Dr. Sajitha.K, shows SLIUF of USG
Surgery gestational age 30 weeks 3 days shows
in cephalic presentation, Intracranial anomalies such
increased AFI is 22.37cm., Fetal as
microcephaly with irregular Microcephaly abnormal;
lateral Cerebral
ventricles gyrations possibly sequelae
and to intra
intraventricular synechiae, Uterine infection with
abnormal cerebral gyrations- bilateral talipes, there
Possibly sequelae to intrauterine exists the risk of physical
infection, Talipes both lower and mental abnormalities
limbs for the child if the child is
born.
The exact nature of
anomalies cannot be
commented upon now
based on the pre natal USG
findings
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06. Evaluated As per the mental status
Dept. of the mental status of Anasuya examination of Anasuya
Psychiatry Somu, 28yrs. She is conscious, Somu, it is inferred that
alert and oriented to time place continuation of pregnancy
and person. She is cooperative is likely to be associated
and answers questions relevantly with risk to her mental
and coherently. No disorder of health.
stream, form or possession is
elicited. No delusions or
hallucinations are elicited.
Cognitive functions are within
normal limits. She has adequate
judgment and insight regarding
her present health conditions.
Mrs. Anasuya Somu reports
significant anxious cognitions
regarding continuation of her
pregnancy. She reports that she
finds it impossible to continue the
pregnancy as it causes very
severe emotional distress to her
while 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.
6. Opinion by Medical Board for termination of pregnancy:
a) Allowed : Allowed
b) Denied:
Justification for the decision: It is inferred that continuation of
pregnancy is likely to be associated with risk to her mental
health."
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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 caused by such pregnancy may
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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:
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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";
7. The position of law can therefore be summarised thus:
8. Besides the above statutory safeguards, the Ministry of
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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
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
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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 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
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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 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".
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12. As far as the present case is concerned, Exts.P4 to P6
scan reports, it is clear that 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 disability. Further the Medical Board
has opined that if the pregnancy continues and a baby is born,it
would suffer from serious physical abnormalities.
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. 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 sixth respondent to
terminate the first petitioner's pregnancy.
In the aforementioned circumstances, I dispose of the writ
petition by passing the following directions:
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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.
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.
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6. The parties shall appear before the Superintendent of
Medical College Hospital, Kottayam on 31.01.2026.
sd/-
SHOBA ANNAMMA EAPEN
JUDGE
MBS/
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APPENDIX OF WP(C) NO. 3135 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE REPORT DATED 06.11.2025
ISSUED FROM THE DEPARTMENT OF RADIOLOGY AND
IMAGING, MANDIRAM HOSPITAL, KOTTAYAM
Exhibit P2 A TRUE COPY OF THE OBSTETRIC ANOMALY SCAN
REPORT DATED 06.11.2025 ISSUED BY MEDICAN
ULTRASOUND SCAN CENTRE, KOTTAYAM
Exhibit P3 A TRUE COPY OF THE OB- 2/3 TRIMESTER SCAN
REPORT DATED 16.01.2026 ISSUED BY CARITAS
MATHA HOSPITAL, KOTTAYAM
Exhibit P4 THE TRUE COPY OF THE OB-2/3 TRIMESTER SCAN
DATED 17.01.2025 ISSUED FROM THE DIVISION OF
FETAL MEDICINE & PERINATOLOGY, AMRITA
INSTITUTE OF MEDICAL SCIENCES AND RESEARCH
CENTER, KOCHI
Exhibit P5 THE TRUE COPY OF THE NEUROSONOGRAM SCAN
DATED 17.01.2025 ISSUED FROM THE AMRITA
INSTITUTE OF MEDICAL SCIENCES AND RESEARCH
CENTER, KOCHI
Exhibit P6 THE TRUE COPY OF THE RADIOLOGY SCAN REPORT
DATED 19.01.2026 ISSUED FROM THE AMRITA
INSTITUTE OF MEDICAL SCIENCES AND RESEARCH
CENTER, KOCHI
Exhibit P7 THE TRUE COPY OF THE OPINION DATED
23.01.2026 OF THE GOVERNMENT MEDICAL
COLLEGE, KOTTAYAM
Exhibit P8 THE TRUE COPY OF THE JUDGMENT IN W.P(C) NO.
8514/2025 OF THE HON'BLE HIGH COURT OF
KERALA
Exhibit P9 THE TRUE COPY OF THE JUDGMENT IN W.A. NO.
477/2025 OF THE HON'BLE HIGH COURT OF KERALA
