Kerala High Court
Sreekala Santhosh vs The Union Of India on 26 March, 2026
W.P(C) No.10295 of 2026 1 2026:KER:26824
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 26TH DAY OF MARCH 2026 / 5TH CHAITHRA, 1948
WP(C) NO. 10295 OF 2026
PETITIONERS:
1 SREEKALA SANTHOSH
AGED 26 YEARS
WIFE OF ARUN GANGAN, RESIDING AT KOCHUNIKARTHIL,
KEEZHATHADIYOOR PO, PALA, KOTTAYAM, PIN - 686574
2 ARUN GANGAN
AGED 30 YEARS
SON OF GANGADHARAN A M, RESIDING AT 'AINIKKUNNATH
HOUSE', AMBALAPURAM,
YAKKARA WEST, PALAKKAD, PIN - 678001
BY ADVS.
SHRI. AKASH S.
SMT.SONIYA S.
SHRI. GIRISH KUMAR M S
SMT.RICHU THERESA ROBERT
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
W.P(C) No.10295 of 2026 2 2026:KER:26824
4 THE DIRECTOR OF MEDICAL EDUCATION
MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKUZHI,
THIRUVANANTHAPURAM, PIN - 695015
5 THE SUPERINTENDENT
THE GOVERNMENT MEDICAL COLLEGE AND HOSPITAL, HMT
COLONY, KALAMASSERY, ERNAKULAM, PIN - 683503
6 LAKSHMI HOSPITAL
REPRESENTED BY ITS MANAGING DIRECTOR, DIWAN'S ROAD,
ERNAKULAM, PIN - 682016
BY ADV SHRI.K.ARJUN VENUGOPAL, CGC
BY SRI.SHAMEER P.M.-GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.03.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) No.10295 of 2026 3 2026:KER:26824
M.B.SNEHALATHA, J.
-------------------------------------------
W.P(C) No.10295 of 2026
-------------------------------------------
Dated, this the 26th March, 2026
JUDGMENT
The petitioners who are husband and wife have approached this Court seeking medical termination of the 26 weeks old pregnancy of 1 st petitioner, after having found that the head size and overall weight of the foetus are at around 4th percentile, which means the growth is much smaller than expected at this stage of pregnancy. The scan report also identified a tiny echogenic intra cardiac focus in the left ventricle, which correlates with the diagnosis of distal 10q duplication. This condition is associated with multiple anomalies such as slow growth before and after birth, low muscle tone (hypotonia), developmental delay, intellectual disability, craniofacial abnormalities, kidney or lung abnormalities and limb defects.
2. According to the petitioners, the fetal assessment done at Lakshmi Hospital, Ernakulam on 27.2.2026, confirmed the above findings. Exts.P5 and P6 reports are indicative of major anomalies. The petitioners, therefore, seek for a direction to the respondents to permit the 1st petitioner to undergo medical termination of pregnancy.
3. The disclosure of the nature and consequences of the foetal anomalies have left the 1st petitioner mentally and emotionally devastated. The petitioners are convinced that proceeding further with W.P(C) No.10295 of 2026 4 2026:KER:26824 the pregnancy can inflict severe stress and mental agony on the 1 st petitioner. Further, the foetus is suffering from major anomalies, and if at all it is born alive, the quality of the life would be extremely poor that even movement would not be possible. The petitioners have been informed of the outcome of the said pregnancy and they wish to medically terminate the pregnancy. The petitioners have already approached various hospitals to perform medical termination of pregnancy; however, all of the hospitals declined to perform the required procedure since they were barred by the provisions of the Medical Termination of Pregnancy Act, 1971.
4. Heard the learned counsel for the petitioners, the learned DSGI and the learned Government Pleader.
5. When the writ petition came up for consideration on 16.3.2026 this Court directed the 5 th respondent to constitute a Medical Board for the purpose of assessing the following:-
a) Whether continuance of the 1st 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 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, 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?
W.P(C) No.10295 of 2026 5 2026:KER:26824
6. On 24.03.2026, the learned Government Pleader made available before this Court the report of the Medical Board dated 24.3.2026 comprising of Associate Professor, OBG Department, GMCH, Ernakulam, Assistant Professor, Radiology Department, GMCH, Ernakulam, Associate Professor, Paediatrics Department, GMCH, Ernakulam, Assistant Professor, Psychiatry Department, GMCH, Ernkaulam.
7. The final opinion of the Medical Board reads as under:-
"Final Opinion Though baby does not have any gross structural anomalies and fetal ECHO shows normal heart, genetic test by amniocentesis has confirmed chromosomal abnormality Chromosome 10q duplication. The genetic counseling by experienced geneticist suggests that there is high likelihood that baby if born will suffer from mental sub normality and seizures."
8.The learned counsel for the petitioners took the attention of this Court to Clause V.c of Ext.P7 guidance note dated 6.8.2018 and contended that if the medical board finds any substantial foetal abnormalities, 1 st petitioner may be permitted to terminate her pregnancy using any scientific methods as stated in Clause V.c of the guidelines. Clause V.c of the guidelines reads as follows:
"V.c Stopping foetal heart beat:
In cases of pregnancy over 24 weeks of gestation, an ultrasound gulded procedure may be required so that foetus is not expelled/delivered alive. This is a skilled procedure and must be performed by an experienced Obstetrician or Foetal Medicine expert only. The Royal College of Obstetricians and Gynecologists (RCOG) recommends 2-3 ml of strong (15%) potassium chloride (KCI) injection in the foetal heart prior to termination. A W.P(C) No.10295 of 2026 6 2026:KER:26824 repeat injection may be required if a systole has not occurred after 30-60 seconds. A systole should be observed for at least two minutes and foetal demise should be confirmed by ultrasound scan after 30-60 minutes.
9. The Medical Termination of Pregnancy Act, 1971 (for short, the MTP Act) deals with the termination of certain pregnancies by registered practitioners. The Act permits licenced medical professionals to perform abortions in specific predetermined situations as provided under the legislation - such as, when there is danger to the life or risk to the physical or mental health of the pregnant women, when pregnancy arises from sex crime or rape or intercourse with lunatic women etc., and when there is substantial risk that the child when born would suffer from deformities and diseases. The MTP Act was amended in 2021 to allow certain categories of women such as rape victims, minors, mentally ill women etc. to obtain abortions up to 24 weeks of gestation, raising it from the previous 20 weeks. On scrutiny of Section 3, with reference to sub-section (2), it is seen that medical termination of pregnancy can be permitted up to 24 weeks if the continuance of the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health. An exception is carved out by clause (2B) of subsection (2) of Section 3, as per which provisions of sub-section (2) relating to the length of pregnancy shall not apply to the termination of pregnancy if such termination is necessitated by the diagnosis of any substantial foetal abnormalities by a medical board.
W.P(C) No.10295 of 2026 7 2026:KER:26824 Thus, termination of pregnancy can be permitted even if gestational age of the foetus is more than 24 weeks, if the duly constituted Medical Board certifies that there is substantial foetal abnormalities.
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 while leaving out irrelevant considerations and not vice versa."
12. As far as the present case is concerned, from Exts.P3 to P6 and the Medical Board report, it is clear that there exists sufficient reason to hold that the baby may have all the complications of prematurity. This pregnancy can adversely affect the 1st petitioner's future pregnancies too including scar dehiscence and adherent placenta.
13. Consequently, there is a decisive basis to hold that the 1 st W.P(C) No.10295 of 2026 8 2026:KER:26824 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. Accordingly, this Court is of the opinion that this petition filed by the petitioners to permit the 1st petitioner to undergo medical termination of her pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 has to be allowed in the interest of justice.
15. In the aforementioned circumstances, this writ petition is disposed of as follows:-
i) 1st petitioner is permitted to undergo medical termination of her pregnancy at the 6th respondent hospital or any other hospital of her choice, using all permissible scientific methods, in accordance with Ext.P7 Guidance Note for Medical Boards for Termination of Pregnancy beyond 20 weeks of gestation and other applicable law;
(ii) Respondents 3 to 6 shall take immediate measures for constituting a medical team to conduct the termination of the 1st petitioner's pregnancy, on production of a copy of this judgment.
(iii) The medical team shall, in their discretion and best judgment, adopt the best procedure recommended in the medical science to W.P(C) No.10295 of 2026 9 2026:KER:26824 terminate the pregnancy and save the life of the 1st petitioner.
iv) The 1st petitioner shall file an undertaking authorising the 6th respondent to terminate the pregnancy at her risk and costs.
v) Permission is granted to the Medical Board to assess whether the foetal has any substantial abnormalities as defined under Section 3(2)-B of the Medical Termination of Pregnancy Act, 1971.
vi) In case it finds that there are substantial abnormalities in the foetal, liberty is granted to the 1st petitioner to terminate the pregnancy using the scientific methods.
The parties shall appear before the Superintendent of Medical College Hospital, Kalamassery on 28.3.2026.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
W.P(C) No.10295 of 2026 10 2026:KER:26824
APPENDIX OF WP(C) NO. 10295 OF 2026
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE AADHAAR CARD BEARING
NO. 6900 8938 0777 OF THE 1ST PETITIONER
Exhibit P2 THE TRUE COPY OF THE AADHAAR CARD BEARING
NO. 5391 9981 6787 OF THE 2ND PETITIONER
Exhibit P3 THE TRUE COPY OF THE EARLY OBSTETRIC
ULTRASOUND SCAN REPORT CONDUCTED ON THE 1ST PETITIONER, DATED 30.01.2026, CONDUCTED AT THE 6TH RESPONDENT HOSPITAL Exhibit P4 THE TRUE COPY OF THE EARLY OBSTETRIC ULTRASOUND SCAN REPORT CONDUCTED ON THE 1ST PETITIONER, DATED 27.02.2026, CONDUCTED AT THE 6TH RESPONDENT HOSPITAL Exhibit P5 THE TRUE COPY OF THE GENOME SEQUENCING ANALYSIS, DATED 12.03.2026, CONDUCTED AT MEDGENOME LABS LTD Exhibit P6 TRUE COPY OF THE ULTRASOUND SCAN CONDUCTED ON THE 1ST PETITIONER AT 26 WEEKS OF GESTATION, DATED 12.03.2026, CONDUCTED AT THE 6TH RESPONDENT HOSPITAL Exhibit P7 THE TRUE COPY OF THE GUIDANCE NOTE FOR MEDICAL BOARDS FOR TERMINATION OF PREGNANCY BEYOND 20 WEEKS OF GESTATION (IN CASES REFERRED BY COURTS), ENCLOSED WITH LETTER DATED 06.08.2018, BEARING NUMBER D.O. NO.
M.12015/58/2017-MCH, ISSUED BY THE JOINT SECRETARY TO THE MINISTRY OF HEALTH AND FAMILY WELFARE RESPONDENTS EXHIBITS: NIL