Kerala High Court
Libina Manzoor vs Union Of India on 15 September, 2020
Author: P.V.Asha
Bench: P.V.Asha
WP(C).No.18610 OF 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942
WP(C).No.18610 OF 2020(A)
PETITIONER/S:
LIBINA MANZOOR
AGED 28 YEARS
W/O. MANZOOR, RESIDING AT CHENNARA HOUSE,
PEZHAKKAPPILLI POST, MUVATTUPUZHA, PIN 686 673
BY ADVS.
SRI.C.DILIP
SRI.R.PRADEEP
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ADDITIONAL SECRETARY, ,MINISTRY OF
HEALTH AND FAMILY WELFARE , NIRMAN BHAVAN, C-WING,
NEW DELHI 110 001
2 STATE OF KERALA,REPRESENTED BY SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
DIRECTORATE OF HEALTH SEERVICES, GENERAL HOSPITAL
JUNCTION, THIRUVANANTHAPURAM 695 035
3 DISTRICT MEDICAL OFFICER,
DISTRICT MEDICAL OFFICE, ERNAKULAM 682 011
OTHER PRESENT:
SMT. VINITHA .B GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.18610 OF 2020
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JUDGMENT
Dated this the 15th day of September 2020 The petitioner has filed this Writ Petition producing Ext.P1 scan report stating that she is having high risk pregnancy with a live foetus with isolated fetal ventriculomegaly which is a damage or trauma to the foetal brain that results in Trisomy 21. In the Writ Petition she stated that as on 07.09.2020, she was having single uterine gestation with average gestational age of 22 weeks 5 days. On the basis of the diagnosis in Ext.P1 petitioner sought for a declaration that she is entitled to terminate her pregnancy under Section 3(2)(b) and 5 of Medical Termination of Pregnancy Act, 1971 and for direction to the District Medical Officer, Ernakulam to constitute a Medical Board to examine her and also to grant her permission to terminate her pregnancy in the event of such advice. The petitioner points out that even though termination of pregnancy is permissible under section 3(2) of the Medical Termination of Pregnancy Act, 1971 only up to a period of 20 weeks, in the event of risk to the life of the woman or the child termination of pregnancy can be allowed under Section 5 and also in the light of the judgments of the Honourable Supreme Court as well as this Court.
2. When the matter came up for consideration on 11.09.2020 WP(C).No.18610 OF 2020 3 this Court passed an interim order directing the 3 rd respondent to constitute a Medical Board and to examine the petitioner and to report the matter.
3. Accordingly a Medical Board was constituted with the following members, to examine the petitioner:
1. Dr.C.Prethibha, Sr.Consultant O&G
2. Dr.Anil Kumar V.D., Chief Consultant, Paediatrics
3. Dr.Manoj G., Sr.Consultant, General Medicine
4. Dr.Gopakumar M.K., Consultant, General Medicine (Cardiologist)
5. Dr.Manjusha V.K., Consultant Radio Diagnosis
6. Dr.Meenabeebi, Jr.Consultant, Blood Bank&Clinical Lab In the medical report made available before this Court Smt.Vinitha B, the learned Government Pleader, shows the following:
"We, the members of the Medical Board on 14.09.2020, examined Smt. Libina, W/o Manzoor, a 6th gravida with one full term normal delivery followed by 3 abortions and after that one caesarian section and last child 1¾ years. Both babies are normal. Patient had anti natal check up from local hospital and NT scan was normal. Anomaly scan done from local private scanning unit on 20.08.2020 showed Echogenic foci in left ventricle and no other cardiac anomalies detected. Fatal brain -both lateral ventricles appear dilated measuring 10.7mm - No other serious abnormalities detected.
Background risk for trisomy 21 1:1000
Adjusted risk for trisomy 21 1:36(high risk)
Eventhough amniocentesis was advised it was not done for confirmation of anomalies.
At this late second trimester (24 weeks 1 day gestation as per USG) if termination is done baby will be alive and may how functional and anatomical immaturity of various systems. In addition 2nd trimester abortion carries high risk for mother in terms of scar rupture, uterine perforation (on medical methods for inducing vaginal delivery) and further may need hysterectomy. Post Partum hemorrhage and infection may occur.
Maternal risk will be more at this stage of termination and future fertility may be affected.
USG done from General Hospital Ernakulam, on 14.09.2020, no abnormalities detected except for echogenic intra cardiac focus in left ventricle. Echogenic focus can be normally seen WP(C).No.18610 OF 2020 4 in 1-5% of fetus. So it alone is not a significant marker for congenital anomaly.
Hence medical board constituted on 14.09.2020 for this case is not favouring immediate termination with the present available documents. However amniocentesis and fetal echo cardiogram may be done to rule out the remote possibilities of lethal anomalies. Both these investigation are not available at GH Ernakulam."
4. Therefore the Medical Board has not found that continuation of pregnancy would involve any risk to the life of petitioner. On the other hand they have found that termination at this stage would involve high risk for her in terms of scar rupture, uterine perforation, etc. It is also seen that the baby would be born alive with functional and anatomical immaturity of various systems. Therefore any steps for termination of pregnancy would affect the rights of the baby.
5. The learned Counsel for the petitioner argued that since the opinion in Ext.P1 and that of the Medical Board are different, it is only proper to go for a third opinion or to allow the termination since it involves risk to the baby.
6. Termination of pregnancy beyond 20 weeks, can be permitted only in a case where the life of the woman or child is at risk. In the present case no risk is reported as far as the petitioner is concerned. Section 3 and 5 of the Medical Termination of Pregnancy Act, 1971 read as follows:
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 WP(C).No.18610 OF 2020 5 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 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 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 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 lunatic, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.
5. Sections 3 and 4 when not to apply.-
(1) The provisions of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.
Though the learned counsel for the petitioner relied on the judgments of Supreme Court in Mrs.X vs. Union of India and others : AIR 2016 SC 3525, Mrs.X vs. Union of India and others :
AIR 2017 SC 1055 and also this Court in ABC V Union of India :
2020(2) KHC 526, it is seen that those judgments were rendered WP(C).No.18610 OF 2020 6 in cases where petitioners were rape victims in high risk of their physical as well as mental trauma. In the absence of any finding by the Medical Board as to any risk to the life of the petitioner in the event of continuation of pregnancy and especially when it is stated that a termination at this stage can only result in giving birth to living baby, I am of the view that permission need not be granted to petitioner for termination of pregnancy. Even otherwise prayer no.3 in the Writ Petition is for permitting termination of pregnancy on the basis of advice by the Medical Board. In the absence of such an advice, I am of the view that the claim of petitioner cannot be accepted when it results in denial of the right to life of the baby in the womb.
Accordingly the Writ Petition is dismissed.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.18610 OF 2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SCAN (USG OBSTETRICS)
REPORT DATED 20-08-2020 POF THE PETITIONER.