Plea for Medical Termination of Pregnancy after 35 weeks dismissed: Kerala High Court

WP(C).No.27842 OF 2020(E IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY THE 16TH DAY OF DECEMBER 2020 25TH AGRAHAYANA 1942 WP(C).No.27842 OF 2020(E AKHILA KURIAN ALIAS AKHILA ANN BABY AGED 30 YEARS WIFE OF KURIAN JOSE ELENGICAL HOUSE KOTHAMANGALAM P.O. ERNAKULAM 686 691 KURIAN JOSE AGED 33 YEARS SON OF JOSE KURIAN ELENGICAL HOUSE KOTHAMANGALAM P.O. ERNAKULAM 686 691 SHRI.ALEXANDER JOSEPH MARKOS SHRI.SHARAD JOSEPH KODANTHARA THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF WOMEN AND CHILD DEVELOPMENT SASTHRI BHAVAN NEW DELHI 110 001 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT MINISTRY OF CHILD WELFARE GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001 THE DIRECTOR OF HEALTH SERVICES GENERAL HOSPITAL JUNCTION THIRUVANANTHAPURAM 695 035 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE KUMARAPURAM ROAD CHALAKUZHI THIRUVANANTHAPURAM 695 015 THE DISTRICT MEDICAL OFFICER ERNAKULAM DISTRICT PARK AVENUE MARINE DRIVE ERNAKULAM 682 011 THE SUPERINTENDENT THE GENERAL HOSPITAL HOSPITAL WP(C).No.27842 OF 2020(E ROAD ERNAKULAM 682 011 THE SUPERINTENDENT GOVERNMENT MEDICAL COLLEGE GANDHI NAGAR KOTTAYAM 686 008 THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 16.12.2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING WP(C).No.27842 OF 2020(E Dated this the 16th day of December 2020 Petitioners are husband and wife who have approached this Court seeking permission for carrying out medical termination of pregnancy at a gestational age of 34 weeks producing Exts.P5 to P10 reports pointing out serious abnormalities in the foetus When the Writ Petition came up for consideration on 14.12.2020 this Court directed the 7th respondent to convene a medical board in order to examine the 1st petitioner and to report before this Court the medical condition of the 1st petitioner as well as the foetus. Accordingly a medical board was constituted and the 1st petitioner was examined 3. Smt.B.Vinitha the learned Government Pleader made available the medical report furnished by the Superintendent of the Government Medical College Kottayam which would show that the medical board was convened on 15.12.2020 with the following “Chairman: Dr. Lissiamma George Professor & HOD Dept of O&G GMC Kottayam 1. Dr.Beenakumari.R Addl.Professor O&G 2. Dr.M.V.Radhamani Addl.Professor O&G 3. Dr.Sajini.B Addl.Professor O&G 4. Dr.Veerendrakumar.M Addl. Professor Paediatrics 5. Dr.Renju Raveendran. Professor & HOD Forensic Medicine 6.Dr. Rekha Mathew Asst. Professor Psychiatry 7. Dr.Arun.P.Ajith Asst.Professor Radio diagnosis WP(C).No.27842 OF 2020(E The report is as follows The medical board has examined the first petitioner & observed the following facts Primi gravida married 2½ years non consanguineous marriage spontaneous conception LMP: 19 04 2020. EDC: 26 01 2021. Gestational age 34 weeks 2 days No history of maternal comorbidities. Mother diabetic History of antenatal check up at Marsleeva Medicity Hospital Pala. Injection TT 2 doses taken. On examination conscious well oriented no pallor or edema Pulse 80 minute BP 140 80mm of Hg. Per abdomen uterus 34 weeks breech mobile. FHS good 140 minute liquor adequate. USG at Govt. Medical College Kottayam. Single live intra uterine foetus 35 weeks 4 days. Breech presentation estimated foetal weight 2644 gm. Placenta posterior low lying covering internal os Foetal brain shows non visualization of corpus callosum with dilated lateral ventricles & prominent high up third ventricle with a large well defined cyst in the region of Findings suggestive of corpus callosum agenesis with hydro cephalus and inter hemispheric cyst Schizencephaly Her mental status examination she has no past or family history of psychiatric disorders On examination of her mental status she is conscious oriented aware of her condition and the baby s condition she is mentally sound to take decision regarding her From the above findings the medical board jointly has come to the following conclusions The foetus is having serious developmental brain anomalies affecting long term quality of life in the form of recurrent seizures cognitive dysfunction & global developmental delay. Hence there there is an indication for is a possibility of survival of baby at birth is a chance of excessive bleeding during delivery” Since the petitioner is having placenta previa there Since the gestational age is more than 34 weeks there 4. It is seen that the gestational age as on today is 35 weeks and 5 days. Learned counsel for the petitioners relying on the judgments of the Division Bench of the Calcutta High Court reported in Suparna Debnath and another vs. State of West Bengal and others: 2019 KHC 2644 judgment of this Court in Neethu Narendran and another vs. State of Kerala and others : 2020No.26890 2019 and the judgment of the Division Bench of the High Court of Bombay in WP(L) No.4491 2020 dated 22.10.2020 argued that under Article 21 of the Constitution of India the 1st petitioner is having every right to decide on the question of continuance of her pregnancy which is a right to live with human dignity also and hence she has to be permitted to undergo medical termination of pregnancy. It is also stated that the petitioners are willing to take the risk on account of the same. 5. On the other hand the learned Government Pleader argued that when the pregnancy has reached the stage of 35 weeks there is every possibility that the child will be born alive as pointed out by the medical board. It is pointed out that even if there is a normal delivery the Child Welfare Committee would be ready to take care of the child and at this stage permission for medical termination would affect the right to life of the child in the womb. She also pointed out that nobody has a right to commit suicide and a feoticide cannot be permitted at this stage when its growth is almost complete. It is also pointed out that there is risk for the life of both the foetus as well as the mother. It is argued that even as per the MTP amendment Bill 2020 termination is permissible only upto 24 weeks and there is no proposal for its permission irrespective of the gestational Even though the Medical Board has come to the WP(C).No.27842 OF 2020(E conclusion that the foetus is having serious developmental brain anomalies it has found the possibility of survival of baby at birth and that there are chances of excessive bleeding during delivery. However there is no recommendation for termination of pregnancy. It would appear that they have left the decision to Though the learned counsel for the petitioners pointed out that the petitioners are willing to take a risk in none of the judgments relied on by Sri. Isaac Thomas the gestational age had exceeded 32 weeks. Now it is a question of only some more days left for the full development of the foetus Therefore I am of the view that the stage at which permission can be granted has crossed the limits. Moreover I have already dismissed W.P.(C).No.18610 2020 where gestational age was 31 weeks. Therefore the Writ Petition is dismissed. WP(C).No.27842 OF 2020(E PETITIONER S S EXHIBITS TRUE COPY OF FIRST EARLY PREGNANCY SCAN REPORT CARRIED OUT AT MAR SLEEVA MEDICITY PALAI DATED TRUE COPY OF THE OBSTETRIC ULTRASOUND SCAN CARRIED OUT ON THE 1ST PETITIONER AT MAR SLEEVA MEDICITY PALAI DATED 18.07.2020 TRUE COPY OF REPORT OF THE ULTRASOUND SCAN DATED 18.08.2020 CARRIED OUT ON THE 1ST PETITIONER AT MAR SLEEVA MEDICITY PALAI TRUE COPY OF TARGETED SCAN FOR FOETAL MORPHOLOGICAL ANOMALY DETECTION REPORT TRUE COPY OF THE THIRD TRIMESTER OBSTETRIC SCAN CARRIED OUT ON 1ST PETITIONER ON 04.12.2020 TRUE COPY OF CIMAR FERTILITY CENTRE REPORT TRUE COPY OF COMMUNIQUE ISSUED BY CIMAR FOR THE BENEFIT OF THE 1ST PETITIONER S CONSULTING GYNECOLOGIST DATED 05.12.2020 TRUE COPY OF AMRITA INSTITUTE OF MEDICAL SCIENCESSCAN REPORT DATED 07.12.2020 TRUE COPY OF WRITTEN COMMUNICATION DATED 11.12.2020 ISSUED BY AMRITA INSTITUTE OF MEDICAL SCIENCES TO THE 1ST PETITIONER S TRUE COPY OF RENAI MEDICITY PALARIVATTOM MEDICAL REPORT DATED 11.12.2020 TRUE COPY OF JUDGMENT DATED 13.11.2020 OF THIS HON BLE COURT IN WPC NO.24031 OF 2020 OF THUSHARA GEORGE AND ANR. V. THE UNION OF INDIA TRUE COPY OF THIS HON BLE COURT S JUDGMENT DATED 26.06.2020 IN WPC 11726 OF 2020 IN DHANYA HARI & ANR. V. THE UNION OF INDIA & ORS

Summary: Plea by a couple to abort the 34-week-old-foetus because of serious medical abnormalities was rejected by the High Court. As there are only few days left for development of the complete fetus and on the basis of the recommendation of the Medical Board that there was a high possibility that the child would be born alive the Court rejected the Petitioners Plea. The ratio was laid down by the Kerala High Court presided over by J. P.V. Asha in the case of Akhila Kurian Alias Akhila Ann Baby Vs. Union of India, [WP (C) No. 27842 of 2020]. The brief facts of this case are that the Petitioners i.e. the husband and the wife approached the High Court for seeking permission for medical termination of pregnancy at a gestational age of 34-week-old-foetus because of serious abnormalities in the fetus. The Petitioner contended that the mother has every right to decide on continuance of her pregnancy under Article 21 of the Constitution and hence she should be permitted to undergo medical termination of her pregnancy. The Petitioner is aware and willing to take the risk involved. The Medical Board contended that the fetus has serious developmental brain anomalies but there is a possibility of survival of the baby at birth. Further, the Government pleader pointed that the Child Welfare Committee would take care of the child and not to permit the termination of pregnancy as this would violate the right to life of child in the womb. The Court observed that the gestational age had exceeded the period of 32 weeks and it further carefully analyzed the submissions made by both the parties. The Court further elaborated the on the provisions of Medical Termination of Pregnancy Act, 1971, which permits abortion upto 20 weeks and only under certain exceptional circumstances the abortion of the child would be permitted. The exception circumstances are as follows –