Punjab-Haryana High Court
Anamika Lamba And Anr vs State Of Haryana And Others on 21 October, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
247
CWP-23929-2022
Date of decision: 21.10.2022
ANAMIKA LAMBA AND ANOTHER .........Petitioners
VERSUS
STATE OF HARYANA AND OTHERS ........Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present:- Mr. Sandeep Verma, Advocate
for the petitioners.
Mr. Pankaj Mulwani, DAG, Haryana.
Mr. Abhishek K. Premi, Advocate
for respondent No.2.
*****
VINOD S. BHARDWAJ, J. (Oral)
1. The instant petition has been filed under Articles 226/227 of the Constitution of India seeking issuance of a writ in the nature of Mandamus directing the respondent No.2-Post Graduate Institute of Medical Education and Research, Sector-12, Chandigarh though its Director to terminate the pregnancy of the child which is about 29 weeks and 05 days. Reliance in this regard was placed to the Medical Report dated 12.10.2022 (Annexure P-2) as well as other medical record which shows "Prognosis in view of dysplasia kidneys as a result whereof continuation of the pregnancy would cause grave injury to the child of the petitioner No.1 and is also unsafe and dangerous to the life of the petitioner No.1 herself.
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2. Learned counsel appearing on behalf of the petitioners refers to the pleadings and contends that the petitioners got married to each other on 10.12.2020 and the petitioner No.1 conceived on 25.03.2022. During the course of her regular medical check up, the petitioner No.1 was examined by Dr. Shreyasi Sharma, MBBS, MD (ObGyn) and during examination, congenital anomalies were found i.e. dysplasia kidneys which has caused lower urinary tract obstruction. The medical report of the petitioner No.1 had been appended alongwith instant petition as Annexure P-2.
3. That on the basis of the aforesaid medical report, the petitioners sought a second opinion and the said opinion given earlier on 12.10.2022 was affirmed. As per the opinion of the treating physician, the bladder of the foetus is distended, kidneys has dysplasia, cystic change.
4. Upon filing of the present petition, notice was issued to the respondents. Counsel appearing on behalf of respondent No.2 had entered appearance and the petitioner was subjected to examination by the Board constituted for the medical termination of the pregnancy.
5. Pursuant to the said order dated 17.10.2022, the petitioner appear before the Board constituted under Rule 3-A of the Medical Termination of Pregnancy Act, the petitioner No.1 was subjected to medical/physical examination by the aforesaid Board comprising of 07 doctors. The report and opinion on the findings of the Board is extracted as under:
Sr. Report Opinion on the
No. findings.
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1 The patient is primi gravida. As per the Amniotic fluid is
ultrasound done on 19.10.2022, the progressively reducing
period of gestation is 29 weeks 3 day in the last 4 weeks.
with single live intra uterine fetus The life time risk of
weighing 1432+212 grams with developing CKD is
anhydramnios with bilateral 30% in fetuses with
hydroureteronephrosis (R> L) with lower urinary tract
bladder outlet obstruction. The right obstruction who
kidney shows moderate survive till birth. Also
hydronephrosis (AP diameter of pelvis there is severe fetal
24mm), left Kidney shows mild bladder outflow
hydronephrosis. Bilateral ureters are obstruction causing
prominent. anhydramnios which
can cause early loss of
function of kidneys.
Absent amniotic fluid
will affect the lung
development. Hence
MTP is advised due to
absent amniotic fluid,
chances of pulmonary
hypoplasia, thereby
poor prognosis. Also
long term chances of
CKD (chronic kidney
disease)
2 Opinion of the faculty Internal Patient has been
Medicine examined and found to
be medical fit.
3. Opinion of faculty psychiatry Patient is stressed
since the time she got
to know about the
malformation
(possible) in the fetus
which is associated
with prolonged
medical and surgical
treatment for the
family and fetus and
doubtful optimal
outcome for the fetus.
Hence she wants to
discontinue the current
pregnancy.
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4. Other Recommendations As per the Royal
College of
Obstetricians and
Gynecologists
(RCOG) guidelines
(Termination of
pregnancy for fetal
abnormality, 2010), in
cases where medical
abortion is being
performed after 21
weeks +6 days of
gestation for fetal
abnormalities, to
prevent a live birth,
ultrasound-guided
injection of Potassium
Chloride in the fetal
heart is advised before
the abortion.
5. The board advises that
the genetic tests may
be performed on fetus
to assess any genetic
syndrome which may
help to counsel her in
future pregnancy. The
Board also
recommends that the
procedure should be
carried out in
PGIMER, Chandigarh.
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6. Opinion of faculty Pediatric Surgery PGI USG dated
19/10/22 shows nil
liquor and bilateral
hydroureteronephrosis.
Bladder is distended
with keyhole sign. It
can be due to posterior
urethral valve, urethral
atresia, neurogenic
bladder etc. Severe
fetal bladder outflow
obstruction causing
anhydramnios can
cause early loss of
function of kidneys.
Absent amniotic fluid
will affect the lung
development hence
MTP can be
considered due to no
amniotic fluid chances
of pulmonary
hypoplasta and
thereby poor
prognosis. Also long
term chances of CKD
(Chronic kidney
disease).
5. Additional Investigations (if done):
S.No. Investigation done key findings 1 BP 120/80 2 Pulse 88 per min.
3 Hb 10.5 g/dl
6. Opinion by Medical Board for termination of pregnancy:
a) Allowed Termination of pregnancy is allowed.
Justification for the decision:
1. The permanent medical board recommends that this patient may undergo MTP at this stage, severe fetal bladder outflow obstruction causing anhydramnios which can cause early loss of function of kidneys. Also, absent amniotic fluid will affect the lung development.
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2. Medical termination of pregnancy at an advanced gestation of 29 weeks 3 day carries more than usual risks which have been explained to the patient.
3. We also wish to bring to the knowledge that doctors will perform the procedure of Potassium Chloride injection in the fetal heart under ultrasound guidance before termination of pregnancy, to prevent the fetus from being born alive.
4. Physical fitness of the woman for the termination of pregnancy:
a. Yes: Physically fit.
6. The aforesaid report dated 20.10.2022 is ordered to taken on record as Mark 'A'. As per the recommendation made by the Board of Directors, the petitioner No.1 can be subjected to medical termination pregnancy even though it might involve more than usual risks which have already been explained to the patient. The procedure required to be undertaken for performing the termination of the pregnancy has also been set out in the recommendations made by the Medical Board.
7. Learned counsel appearing on behalf of the petitioners consents to the aforesaid recommendation made by the Board and reiterates her willingness to undergo the procedure for seeking medical termination of the pregnancy at Post Graduate Institute of Medical Education and Research (PGIMER), Sector-12, Chandigarh.
8. The relevant statutory provisions dealing with termination of pregnancy are enshrined in Section 3 of the Medical Termination of Pregnancy Act, 1971 and reads as follows:
Section 3 of the Medical Termination and Pregnancy Act, 1971 reads as follows:
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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 twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of 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 such physical or mental abnormalities as to be seriously handicapped. Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
3. In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is 7 of 9 ::: Downloaded on - 22-10-2022 06:04:55 ::: CWP-23929-2022 -8- mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable 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 4 [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."
9. In the considered view of this Court, case of the petitioner would fall under Section 3(2)(b)(ii) but for the time period embargo of 20 weeks. The clear opinion given by the Permanent Medical Board constituted at PGIMER, Chandigarh, as per report at Mark 'A' is that the foetus is not likely to survive on account of congenital anomaly noticed in the report itself. Under such circumstances it would be difficult for this Court to refuse permission to the petitioners to undergo medical termination of pregnancy. There would be no basis for this Court to not accept the recommendations made by the Permanent Medical Board and the constitution of which was approved by the Director, PGIMER, Chandigarh.
10. For the reasons recorded above, the writ petition is allowed.
11. The Director, PGIMER, Chandigarh is requested to get the pregnancy of petitioner No.1, namely, Anamika Lamba terminated under the supervision of the Head of the Department (Obstetrics and Gynecology), PGIMER, Chandigarh. The petitioner No.1 may appear before the Head of the Department (Obstetrics and Gynecology), 8 of 9 ::: Downloaded on - 22-10-2022 06:04:55 ::: CWP-23929-2022 -9- PGIMER, Sector-12, Chandigarh during the course of the day whereupon the necessary date and time for carrying out procedure may be so determined by the Head of the Department (supra).
12. Needless to observe that all the necessary facilities for undertaking such procedure be afforded in favour of the patient.
13. A copy of this order be furnished to counsel for the parties under the signatures of the Bench Secretary to ensure necessary and immediate compliance.
Disposed of.
(VINOD S. BHARDWAJ)
OCTOBER 21, 2022
Vishal sharma
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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