Kerala High Court
Najila B vs Union Of India on 6 January, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:196
WP(C) NO. 44297 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
WP(C) NO. 44297 OF 2024
PETITIONER:
1 NAJILA B
AGED 27 YEARS
DAUGHTER OF SHEEJA BEEVI, RESIDING AT BLOCK NO.
86, CHALLIMUKKU, PERINGAMALA, THIRUVANANTHAPURAM
-, PIN - 695562
2 SHAJEER B
AGED 38 YEARS
SON OF ABDUL BASHEER M, RESIDING AT
PALLIPPADINJATTETHIL VEEDU, KULATHUPUZHA,
KULATHUPUZHA P.O., KOLLAM, PIN - 691310
BY ADVS.
AKASH S.
GIRISH KUMAR M S
RICHU THERESA ROBERT
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF WOMEN
AND CHILD DEVELOPMENT, SASTHRI BHAVAN, NEW DELHI,
PIN - 110001
2 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
4 THE DIRECTOR OF MEDICAL EDUCATION
MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKUZHI,
THIRUVANANTHAPURAM, PIN - 695015.
2025:KER:196
WP(C) NO. 44297 OF 2024
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5 THE SUPERINTENDENT
THE GOVERNMENT MEDICAL COLLEGE AND HOSPITAL, HMT
COLONY, KALAMASSERY, ERNAKULAM, PIN - 683503
6 SABINE HOSPITAL AND RESEARCH CENTRE,
REPRESENTED BY ITS MANAGING DIRECTOR,
PEZHAKKAPPILLY, MUVATTUPUZHA, ERNAKULAM, PIN -
686673.
OTHER PRESENT:
SR GP SMT DEEPA NARAYANAN
DSGI SRI T C KRISHNA
THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 17.12.2024, THE COURT ON
6.1.2025 DELIVERED THE FOLLOWING:
2025:KER:196
WP(C) NO. 44297 OF 2024
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C.S.DIAS,J
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W.P.(C) No.44297 of 2024
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Dated this the 6th day of January, 2025
JUDGMENT
The petitioners have been married for the last nine years. They are issueless and have been undergoing infertility treatment. The first petitioner has conceived. As per the ultrasound scan reports, the foetal development is impaired due to a suspected curvature abnormality in the femur bone. In 30 weeks of gestation, the femur bone corresponds to only 20 weeks, an extremely rare condition. The first petitioner's earlier pregnancy had to be terminated due to a similar condition. Due to the advanced maternal age and low liquor levels of the 1 st petitioner, a detailed evaluation could not be conducted. In view of the medical reports, the petitioners have requested to 2025:KER:196 WP(C) NO. 44297 OF 2024 4 terminate the pregnancy. However, the 2nd respondent has not constituted a Medical Board. Therefore, this Court may direct the 5th respondent to convene a Medical Board and examine the first petitioner. The first petitioner is mentally and emotionally devastated by the foetal anomalies. The petitioners are convinced that proceeding further with the pregnancy would inflict severe stress and mental agony on them. The right to terminate the pregnancy cannot be denied merely because the gestation has crossed 24 weeks. The petitioners seek to terminate the pregnancy, to save the first petitioner and the foetus. Hence, the writ petition.
2. Heard; the learned counsel for the petitioners and the learned Government Pleader.
3. The learned counsel for the petitioners reiterated the contentions in the writ petition. The learned Government Pleader submitted that, after the filing of the writ petition, a Medical Board was constituted and the first petitioner's examination was 2025:KER:196 WP(C) NO. 44297 OF 2024 5 conducted. She handed over a copy of the report of the Medical Board, which was taken on board.
4. The medical report shows that the first petitioner was examined by a four-member Medical Board consisting of the Assistant Professor of the OBG Department, the Professor and Head of the Radiology Department, the Assistant Professor of the Psychiatry Department and the Assistant Professor of the Paediatrics Department of the Government Medical College Hospital, Ernakulam. The Medical Board has unanimously concluded that (i) the continuation of the pregnancy would neither risk the life of the first petitioner nor cause any grave injury to her physical and psychological health (ii) as per the lab reports and scan findings, the petitioners' case is of non-lethal skeletal dysplasia, and there is no substantial risk if the baby were born at the term (iii) there is a danger to the life of the first petitioner if permitted to terminate her pregnancy at this gestational age (iv) if the pregnancy 2025:KER:196 WP(C) NO. 44297 OF 2024 6 is terminated, there is a very high possibility that the baby will be born alive and will have to undergo all complications of prematurity and (v) there is no definite medical indication to terminate the pregnancy at this gestational age.
5. The petitioners state that, as per the scan reports, there is a curvature abnormality in the foetus's femur bone, which corresponds to that of 20 weeks. However, the gestation is 30 weeks, which is an extremely rare condition. The foetus is suffering from significant anomalies, and if it is born alive, its quality of life would be extremely poor, and even movement would not be possible. Therefore, the petitioners may be permitted to terminate the pregnancy.
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.
2025:KER:196 WP(C) NO. 44297 OF 2024 7
7. 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 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 2025:KER:196 WP(C) NO. 44297 OF 2024 8 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."
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 2025:KER:196 WP(C) NO. 44297 OF 2024 9 it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped";
9. The position of law can therefore be summarised thus:
10. In addition to 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 2025:KER:196 WP(C) NO. 44297 OF 2024 10 the Medical Board to ascertain whether the fetal abnormality is substantial enough to qualify as either incompatible with life or associated with significant morbidity or mortality of the child if born. The determination of substantial fetal abnormalities should be based on a thorough review of the patient's medical records, and the Medical Board should conduct additional investigations as may be necessary and 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.
11. In the case at hand, the Medical Board has, in unambiguous terms, opined that the life of the first 2025:KER:196 WP(C) NO. 44297 OF 2024 11 petitioner would be at peril if the pregnancy is terminated at this stage; there is a likelihood of the baby being born alive and suffering from all complications of prematurity. The Experts have also added that there is no definite medical indication to terminate the pregnancy.
12. In a case of a similar nature, in Remya.T v. Union of India (2023 KHC Online 10426), this Court has observed as follows:
"6. No doubt, the Apex Court has declared a woman's right to make reproductive choice to be a dimension of her personal liberty in Suchita Srivastava (supra), but the question is whether such liberty can transgress the restrictions/prohibition under the Medical Termination of Pregnancy Act, that too when the experts have given a conclusive opinion that continuance of the pregnancy is better than premature termination. Yet another consideration is that the gestational age having crossed 36 weeks, there is every possibility of having a live viable baby. Even going by S.3(2B), termination beyond the maximum period can be permitted only if the Medical Board points out substantial foetal anomalies. As no anomaly was detected till 36 weeks of gestation, the Board has excluded major malformation, anomaly in the foetus. It is also stated that the long term prognosis of the newborn can be predicted only after delivery, follow - up and evaluation. The opinion not being definite about any substantial anomaly to the foetus and there being no threat to physical and mental status of the mother if the pregnancy is continued for two more weeks, this court cannot permit medical termination of the pregnancy, particularly when the opinion is that the extra morbidities associated with preterm delivery in both mother and baby can be 2025:KER:196 WP(C) NO. 44297 OF 2024 12 avoided if the termination is planned as per usual protocol. The above reasons compel me to decline the prayer for termination of pregnancy.
In the result, the writ petition is dismissed".
13. In another case of an identical nature, in Indulekha Sreejith v. Union of India and Others (2021 (5) KHC 269), this Court has held that an unborn child also has a fundamental right to life as guaranteed under Article 21 of the Constitution of India. This Court has held so, in the following lines:
"7. An unborn child has a life of its own and rights of its own and the rights of unborn are recognised by law. No doubt, only if the unborn can be treated as a person, the right to life of the unborn can be equated with the fundamental right of the mother guaranteed under Art.21 of the Constitution. True, an unborn is not a natural person, but it is well known that after six weeks, life is infused into the embryo, thus converting embryo into foetus and once an embryo evolves into a foetus, the heartbeat starts. In other words, the unborn has life from the stage it transforms into foetus. If the unborn has life, though it is not a natural person, it can certainly be considered as a person within the meaning of Art.21 of the Constitution, for there is absolutely no reason to treat an unborn child differently from a born child. In other words, the right to life of an unborn shall also be considered as one falling within the scope of Art.21 of the Constitution.
8. In all cases where a Court is called upon to adjudicate the question whether permission shall be granted to a pregnant woman for terminating her pregnancy on a plea of infringement of her fundamental right to life guaranteed under Art.21 of the Constitution, the court is making a balance between the rights of the mother and the rights of the unborn. No doubt, while doing so, if there is any threat to the life of the mother, the scales shall 2025:KER:196 WP(C) NO. 44297 OF 2024 13 certainly tilt in favour of the mother, for if the life of the mother cannot be saved, the life of the unborn cannot be protected.
9. Reverting to the question, when a duly constituted Medical Board opines that the stage of pregnancy is such that it may result in a live baby and that the foetal abnormalities diagnosed are not lethal, in the absence of any threat to the life or health of the mother, I am of the view that the reproductive choice of the mother which is a facet of the fundamental right guaranteed to her under Art.21 of the Constitution, will have to give way to the right of the unborn to be born. True, if the Medical Board diagnoses substantial foetal abnormalities, the amended provisions of the Act permit termination of pregnancy notwithstanding the outer time - limit prescribed in the Act for termination of pregnancy. According to me, even if the amended provisions were notified, the relief sought by the petitioner in the instant case cannot be granted at this stage of her pregnancy, for the Medical Board has not opined that foetal abnormalities found are substantial in nature. The question formulated for decision is thus answered in the negative.
In the result, the writ petition is dismissed".
14. Considering the law on the point, the facts of the present case and the materials placed on record, especially the opinion of the Medical Board that the 1 st petitioner's life would be in danger and there is no definite medical indication to terminate the pregnancy, and the advanced gestation age, it would not be prudent to exercise the plenary powers of this Court under Article 226 of the Constitution of India and grant permission to the petitioners as prayed for in the writ 2025:KER:196 WP(C) NO. 44297 OF 2024 14 petition. The writ petition is devoid of any substance and is only to be dismissed.
Resultantly, the writ petition is dismissed.
Sd/-C.S.DIAS JUDGE NAB 2025:KER:196 WP(C) NO. 44297 OF 2024 15 APPENDIX OF WP(C) 44297/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AADHAAR CARD BEARING NO. 7778 4733 1615 OF THE 1ST PETITIONER, Exhibit P2 TRUE COPY OF THE AADHAAR CARD BEARING NO. 4944 9094 4312 OF THE 2ND PETITIONER Exhibit P3 TRUE COPY OF TEH ULTRASOUND SCAN REPORT OF THE 1ST PETITIONER DURING 20 WEEKS OF GESTATION AT THE ST. JOSEPH'S MISSION HOSPITAL, ANCHAL, KOLLAM DATED 30.09.2024 Exhibit P4 THE TRUE COPY OF THE ULTRASOUND SCAN REPORT OF THE 1ST PETITIONER DURING 24 WEEKS OF GESTATION AT THE ST. JOSEPH'S MISSION HOSPITAL, ANCHAL, KOLLAM DATED 28.10.2024 Exhibit P5 TRUE TRUE COPY OF THE ULTRASOUND SCAN REPORT OF THE 1ST PETITIONER DURING 28 WEEKS OF GESTATION AT THE ST. JOSEPH'S MISSION HOSPITAL, ANCHAL, KOLLAM DATED 25.11.2024 Exhibit P6 THE TRUE COPY OF THE ULTRASOUND SCAN REPORT OF THE 1ST PETITIONER DURING 30 WEEKS OF GESTATION AT THE ST. JOSEPH'S MISSION HOSPITAL, ANCHAL, KOLLAM DATED 09.12.2024 Exhibit P7 TRUE TRUE COPY OF THE ULTRASOUND SCAN REPORT OF THE 1ST PETITIONER, CONDUCTED AT THE 6TH RESPONDENT HOSPITAL DATED 10.12.2024