(2017] l S.C.R. 687

MRS. X AND ORS.

UNION OF INDIA AND ORS.

(Writ Petition (Civil) No. 81 of2017)

FEBRUARY 07, 2017

[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]

Constitution of India - Arts. 32, 2 I - Medical termination of 24 weeks pregnancy - Sought by pregnant lady-petitioner no.I - Examination by medical board- Fetus suffering from bilalteral renal agenesis (a/Jsence of kidneys) and anhydramnios (absence of amniotic fluid/'- Risk of death within womb and no chance of long term post natal survival and continuation of pregnancy could endanger physical and mental health of the petitioner - Held: Mother has a right to preserve her life in view of foreseeable danger in case the pregnancy is allowed to run its fall course - Right of.bodily integrity calls for a permission to allow her to terminate her pregnancy - Report of the Medical Board warrants inference that the continuance of the pregnancy involves the risk to the life of the petitioner and a possible grave injury to her physical or mental health as well as death of fetus outside the womb - Thus, the petitioner permitted to undergo termination of her pregnancy under the provisions of the Act - Medical Termination of Pregnancy Act, I97 I - ss.3(2)(i), 5.

Medical Termination of Pregnancy Act, I 97 I - Termination of pregnancy - So!fght for by 24 weeks pregnant lady-petitioner No.

I -Affuiavit not sworn by petitioner no.I but by the doctor-petitioner No. 3 - Effect of - Held: A relator action may not be permitted in a case of this kind - In a given case petitioner no. I may be under some misconception or under coercion - However, petitioner no. I was examined by the Medical Board about her mental condition - She did not have any psychiatric or emotional problems - Thus, petitioner no. I is allowed the relief - However, such action must be supported by affidavits of the petitioner no. I herself - Hospital would take her consent before terminating her pregnancy -Affidavit.

Suchita Srivastava and Anr. v.

Chandigarh Administration (2009) 9 SCC 1 - referred to. 687

(2009) 9 sec i

Case Law Reference

referred to

[2017] I S.C.R.

Para8

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 81 of2017

B Under Article 32 of the Constitution oflndia.

Sneha Mukherjee, Satya Mitra, Advs. for the Petitioner.s.

Ranjit Kumar, S.G., Ms. Sadhana Sandhu, G. S. Makker, Nish, mt R.

Katneshwarkar, Advs. for the Respondents.

The following Order of the Court was delivered

ORDER

1. Application for non-disclosure ofnames and detail of petitioner No. (and 2 is allowed.

2. The. P-etitioner No. 1- Mrs.Xis about 22 years' old.· She has approached this Court under Artilce 32 of the Constitution oflndia seeking directions'to the respondents to allow her to undergo medical termination of her pregnancy. According to her, fetus which is about 22 weeks old . on the date of the petitio!l has a condition knowns as bilateral. real . agenesis and anhydramnios. She apprehends that.the fetus has no chance of survival and the delievery may endanger her life.

3. In order to verify the condition of petitioner No: I, this Court by order dated 03.02.2017 while issuing notice to the respondents directed examination of the petitioner by a medical Board consisting of following seven Doctors :

I. Dr. Avinash N. Supe, Director (Medical Education & Major Hospitals) & Dean (G&K)- Chairman

2. Dr. Shubhangi Parkar, Professor and HOD, Psychiatry, J(EM Hospital

3. Dr. Amar Pazare, professor and HOD, Medicine, KEM Hosptial

4. Dr. Indrani Hemantkuinar Chincholi, Professor and HOD: Anaesthesia, KEM Hospital .

5. Dr. Y.S. Nandanwar, Professor and HOD, Obstetrics, KEM . Hospitals

6. Dr. Anahita Chauhan, Professor and Unit Head, Obstetrics & A Gynecology, LTMMC and LTMG Hospitals

7. Dr. Hemangini Thakkar, Addi. Professor, Radiology, KEM Hospital.

" 4. By its reportdated 04.02.2017, the Medical Board as constituted bytflis Court has given its expert opinion upon reviewing the complete · hist'ory as narrated by the petitimier No. l and her brother alongwith all '"ttfe'piipei's:'The petitioner No. 1 was examined by all the Board Members 'with' specific recourse to the specialty: ... {.._ ··. •' ... r : .5., Te learned Solicitor.General who appears on behalf of Union of . J119ia had the report evalu.ated by , Doctor Veena Dhawan from the

0/Vlipis.try of Health. The sai.d Doctor does not disagree with the.findings

".yth~,\\,1edical Board &nd is also in agreement with the proposed action

, by th~ Medical Board. The salient features of the report are:

"'.. Ultrasonography diagnosis is single live fetus with gestational age of24 weeks 3 days with bilateral renal agenesis with double . outlet right ventricle with ventricu Jar septa I defeat with t\'IO vessel cord with anhydramnios ....

Opinion of Pediatric Surgeon in charge of Birth Defect Clinic: There is risk of intrauterine fetal death/ sti ti birth and there is no chance of long term post natal survival, and no curative treatment is available at present for bilateral rengal agenesis. '.

6. There is thus a clear diagnosis of the condition of the single live fetus which is said to have bialateral renal agenesis wheich means the fetus has no kidneys and anhydramnios which mean~ that thre is an absence of amniotic fluid in the womb. Further, there is a clear observation that there is a risk of intrauterine fetal death, i.e. death wi)hin womb and there is no chance of a Jong term post natal survival.

What is .important is that there is no curative treatment available at present for bilat.eral renaJ agenesis.

7 ; The Medical Board has opined that the condition of.the fetus is incompatible with extra-uterine life, i.e. outside the womb .•.because prolonged absence of amniotic fluid results in pulmonary hypoplasia

leading to.severe respiratory insufficiency at birth. From the point of

vieof th~ petitioner the report ha~ observed. risk to the mother since

contiiiatio~ of pregnancy can endager her physical and oiental health.

8. We have alreadyvide order dated 16.01.2017 upheld the right of a mother to preserve her life in view of foreseeable danger in case the pregnancy is allowed to run its full course. This Court in that case elied upon the case of Suchita Srivastava and Anr. vs. Chandigarh Administration [(2009) 9 SCC I], where a bench of three Judges held "a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution". In these circumstances we find that the right of bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of. the pregnancy involves the risk to the life of the petitioner and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 197L It may be noted that Section 5 of the Act enables termination of pregnancy where an opinion ifformed by not less than two medical practitioners in a case where opinion is for the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

9. Though the current pregnancy of the petitioner is about 24'" weeks and endanger to the life and inevitable to the death of the fetus outside womb, we consider it appropriate to permit the petitioner to undergo termination of her pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971. We order accordingly.

10. The termination of pregnancy of petitioner no. I will be performed by the Doctors of the hospital where she has undergone medical checkup. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on petitioner No. I for termination of her pregnancy.

11. Shri Ranjit Kumar, learned solicitor General rightly poinls out that the affidavit in the present case is not sworn by petitioner No. I who seeks termination of her pregnancy and is sworn by a Doctor who is petitioner No.3. We might note that a relator action may not be permitted in a case of this kind. There would be various circumstances about which the Court must be assured of before the order is made. Conceivably, in a given case petitioner No. 1 may be under some miscoriception or under coercion. We do not find that to be case here because Petitioner No. I has been examined by the Medical Board about her merital condition. In fact the Board has made a 'psychiatric evaluation of her

and has stated that the patient is co-operative and coherent and has no psychiatric or emotional problems. Hence we do not propose to deny relief to petitioner No. I. It is however, made clear that such action must be supported by affidavits of the petitioner No. I herself. Needless to state that KEM Hospital will take her consent before terminating her pregnancy.

12. With the aforesaid directions, the instant writ petition is allowed in te1ms of prayer (a) seeking direction to the respondents to allow petitioner no. I to undergo medical termination of her pregnancy.

Nidhi Jain Writ Petition allowed.