Kerala High Court
Akhila Kurian Alias Akhila Ann Baby vs The Union Of India on 18 December, 2020
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
WA.No.1716 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 27842/2020(E) OF HIGH COURT OF
KERALA DATED 16.12.2020
APPELLANT/S:
1 AKHILA KURIAN ALIAS AKHILA ANN BABY
AGED 30 YEARS
W/O. KURIAN JOSE, ELENGICAL HOUSE,
KOTHAMANGALAM P. O., ERNAKULAM - 686 691
2 KURIAN JOSE
AGED 33 YEARS
S/O. JOSE KURIAN , ELENGICAL HOUSE,
KOTHAMANGALAM P. O., ERNAKULAM - 686 691
BY ADVS.
SRI.ISAAC THOMAS
SHRI.ALEXANDER JOSEPH MARKOS
SHRI.SHARAD JOSEPH KODANTHARA
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
SASTHRI BHAVAN, NEW DELHI - 110 001.
2 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
MINISTRY OF CHILD WELFARE,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 THE DIRECTOR OF HEALTH SERVICES
GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM - 695 035.
4 THE DIRECTOR OF MEDICAL EDUCATION
MEDICAL COLLEGE, KUMARAPURAM ROAD,
CHALAKUZHI, THIRUVANANTHAPURAM - 695 015.
W.A.1716/2020 2
5 THE DISTRICT MEDICAL OFFICER
ERNAKULAM DISTRICT, PARK AVENUE,
MARINE DERIVE, ERNAKULAM - 682 011.
6 THE SUPERINTENDENT
THE GENERAL HOSPITAL,
HOSPITAL ROAD,
ERNAKULAM - 682 011.
7 THE SUPERINTENDENT
GOVERNMENT MEDICAL COLLEGE - KOTTAYAM,
GANDHI NAGAR, KOTTAYAM - 686 008.
OTHER PRESENT:
SRI.P.VIJAYAKUMAR, ASG FOR R1,
SRI.ARAVIND KUMAR BABU, SR GP FOR R2 TO R7
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.12.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.1716/2020 3
JUDGMENT
Dated this the 18th day of December, 2020 S. Manikumar, CJ Instant writ appeal is directed against the judgment in W.P(C). No.27842 of 2020 dated 16.12.2020, by which a learned single Judge of this Court declined to issue any directions to the respondents to allow the 1st petitioner therein/1st appellant in this writ appeal to undergo medical termination of pregnancy.
2. Short facts leading to filing of writ appeal are as under:
Appellants are the wife and husband respectively. The 1 st appellant was informed that she is pregnant on 23.05.2020 and has thereafter been carrying out routine medical checkups. As it was noticed that the 1 st appellant had a low lying placenta and in order to ensure the health of the foetus and also that of the 1 st appellant, as an act of abundant caution, Targeted Scan for Foetal Morphological Anomaly Detection (4D) was carried out on 03.09.2020. However, during the Third Trimester Obstetric Scan on 04.12.2020, multiple issues were noticed with respect to the head of the Foetus, which was confirmed by various eminent Gynaecologists, who informed that the child, if born, would suffer from severe infirmities.W.A.1716/2020 4
3. Appellants have further stated that during the pendency of writ petition, an interim direction was issued to constitute a Medical Board to look into the matter and submit a report. Pursuant to the same, a report dated 15.12.2020 was submitted to the writ court stating that foetus is having serious developmental brain anomalies affecting long term quality of life in the form of recurrent seizures, cognitive dysfunction and global developmental delay.
4. According to the appellants, the medical report further states that there is an indication for medical termination of pregnancy. Report further reads that the 1st appellant is having placenta previa and that there is a chance of excessive bleeding during delivery. According to them, life of the 1st appellant is at serious risk, if the pregnancy is allowed to continue.
5. Appellants have further contended that despite the clear conclusion in support of medical termination of pregnancy by the Medical Board, writ court declined to grant permission for medical termination of pregnancy, solely on the ground that gestational age of the foetus had crossed 31 weeks. At the time of filing of the writ petition, the gestational period of the 1st appellant's foetus was 34 weeks and 2 days.
6. Operative portion of the impugned judgment is reproduced: W.A.1716/2020 5
"6. Even though the Medical Board has come to the conclusion that the foetus is having serious developmental brain anomalies, it has found the possibility of survival of the baby at birth and that there are chances of excessive bleeding during delivery. However, there is no recommendation for termination of pregnancy. It would appear that they have left the decision to this Court.
7. Though the learned counsel for the petitioners pointed out that the petitioners are willing to take a risk, in none of the judgments relied on by Sri. Isaac Thomas, the gestational age had exceeded 32 weeks. Now it is a question of only some more days left for the full development of the foetus. Therefore, I am of the view that the stage at which permission can be granted has crossed the limits. Moreover, I have already dismissed W.P.(C).No.18610/2020 where gestational age was 31 weeks."
7. Being aggrieved, instant appeal is filed by the appellants on the following grounds:
A. The dismissal of the writ petition by the learned Single Judge on the ground that in an earlier case, this court had declined to grant permission for medical termination of pregnancy where foetal age was 31 weeks is absolutely flawed. It is understood that in the said case, the Medical Board categorically recommended against termination of the pregnancy which is totally different from the facts of the case at hand, wherein the Medical Board had left the final decision W.A.1716/2020 6 to this Court after clearly indicating that there was a reasonable case for medical termination of pregnancy.
B. It is amply clear that what requires consideration is a comparison between the rights of the unborn foetus vis-a-vis the rights of the pregnant mother. The Calcutta High Court in Suparna Debnath and Another v. State of West Bengal and Others, reported in AIR 2019 Cal. 99, had overturned the decision of the learned Single Judge of that Court which declined to grant permission for medical termination of pregnancy on the ground that the right of the foetus to live outweighs the mental trauma that may be suffered by the mother in giving birth to the said child.
C. Further, the learned Single Judge ought to have taken into consideration the judgment dated 30.04.2020 of another Single Judge of this Court in Neethu Narendran and Another v. State of Kerala and Others, reported in 2020 (3) KLT 155, which considered the issue of rights of the unborn foetus vis-a- vis the pregnant mother, under Article 21 of the Constitution of India. In the said judgment, this Court had gone a step ahead to take into consideration the scheme of Medical Termination of Pregnancy Act (Amendment) Bill of 2020, which had been introduced in the Parliament on 14.02.2020 and is pending approval by the Rajya Sabha. The fact that the amendment sought to be made was in fact making the gestational age of the foetus inconsequential to termination of pregnancy in the event of substantial foetal abnormalities and this was specifically noted by while arriving at the said judgment. This aspect, though vehemently canvassed before the learned W.A.1716/2020 7 Single Judge, was completely overlooked which is a clear ground for setting aside the impugned judgment.
D. It cannot be said that foetal age would be the only criteria that would weigh when considering an application for medical termination of pregnancy. In the facts of the instant case, it is significant to note that despite carrying out Targeted Scan for Foetal Morphological Anomaly Detection (4D) on the 1 st appellant, as is evident from the Exhibit P4 Report to the Writ Petition, no anomalies whatsoever were noticed with respect to the health of the foetus. It is pertinent to note that the instances of carrying out such scans at an earlier stage are unusual and it was only done as a matter of abundant caution. However, multiple issues were noticed only on 04.12.2020 with respect to the health of the Foetus. Multiple opinions were thereafter obtained from renowned Medical Practitioners before approaching this Court on 14.12.2020.
E. Under no stretch of imagination can the rights of the unborn foetus, assuming without admitting that the same even exists, outweigh the rights of the pregnant mother, in this case, the 1 st Appellant under Article 21 of the Constitution of India. The 1 st Appellant necessarily ought to be at liberty to make a choice with respect to termination of her pregnancy. The arguments on behalf of the State that intrauterine foeticide would amount to suicide is absolutely misplaced and unsustainable, more so in view of the Judgment of the Bombay High Court in the case of Sunaina Avadhesh Prasad (supra) and can only be viewed as the State attempting to be more catholic than the Pope.W.A.1716/2020 8
8. In addition to the above, relying on the decision of a learned Single Judge of this Court in W.P(C). No.24031 of 2020 dated 13.11.2020, Mr. Isaac Thomas, learned counsel for the appellants, submitted that medical termination of pregnancy ought to have been permitted when a Medical Board, in its report, has clearly indicated medical termination of pregnancy. In this context, he also invited the attention of this Court to the finding of the Medical Board at paragraphs 1 and 3 of its report, wherein it is also indicated that there is a chance of excessive bleeding during delivery.
9. By referring to a decision of this Court in Neethu Narendran and Another v. State of Kerala and Others [2020 (3) KLT 155] and the observations of the learned Single Judge, with reference to the Bill introduced, as regards the gestational period of the child, decision of the Bombay High Court in Sunaina Avadhesh Prasad v. State of Maharashtra & Others [(W.P.(L). No.4494/2020 dated 22.10.2020)], and a decision of this Court in W.P(C).No.26890 of 2019 dated 14.10.2019, Mr. Isaac Thomas, learned counsel for the appellants, submitted that instead of giving importance to the gestational age, the writ court ought to have granted the relief, termination of pregnancy, on the basis of opinion of the Medical Board stated supra. He also referred to W.A.1716/2020 9 the multiple reports of the Doctors, who had examined the 1 st appellant. However, we appreciate the stand of Mr. Isaac Thomas, learned counsel for the appellants, that he would rest his contentions only on the basis of the opinion of the Medical Board.
10. Learned counsel for the appellants further submitted that till the 1st respondent had undergone a scan after completion of 32 weeks of pregnancy, she did not know the abnormalities, and the moment she knew the complications, she sought medical advice.
11. Per contra, Mr. T.K. Aravinda Kumar Babu, learned Senior Government Pleader, submitted that placenta previa is only a medical condition and not an emergency situation. It is not the opinion of the Medical Board, that there is a threat to the mother or child. Thus, there is a possibility of survival of both, if pregnancy is allowed to continue. There is always the possibility of a cesarean, protecting the life of both, mother and child. According to him, the writ court has considered the report of the Medical Board in proper perspective and denied the reliefs sought for by the appellants, and therefore, submitted that no inference is called for.
12. In the light of the fair admission of Mr. Isaac Thomas, learned counsel for the appellants, relying on the reports of the Doctors vis-a-vis, the opinion of the Medical Board, Kottayam, we deem it fit to consider W.A.1716/2020 10 the opinion of the Medical Board, Kottayam, dated 15.12.2020 which reads thus:
"Chairman: Dr. Lissiamma George, Professor & HOD, Dept. of O&G, GMC, Kottayam PARTICIPANTS
1. Dr. Beenakumari. R, Addl. Professor, O&G
2. Dr. M. V.Radhamani, Addl. Professor, O&G
3. Dr. Sajini. B, Addl. Professor, O&G
4. Dr. Veerendrakumar M., Addl. Professor, Paediatrics
5. Dr. Renju Raveendran, Professor & HOD, Forensic Medicine
6. Dr. Rekha Mathew, Asst. Professor, Psychiatry
7. Dr. Arun P. Ajith, Asst. Professor, Radio diagnosis.
The report is as follows:
The medical board has examined the first petitioner & observed the following facts.
Primi gravida, married 2½ years, non consanguineous marriage, spontaneous conception. LMP: 19/04/2020., EDC: 26/01/2021. Gestational age 34 weeks 2 days.
No history of maternal comorbidities. Mother diabetic. History of antenatal check up at Marsleeva Medicity Hospital, Pala. Injection TT 2 doses taken. On examination conscious, well oriented, no pallor or edema, Pulse 80/minute BP 140/80mm of Hg.
Per abdomen uterus 34 weeks, breech, mobile. FHS good, 140/minute, liquor adequate.
USG (15/12/20) at Govt. Medical College, Kottayam. Single live intrauterine foetus, 35 weeks 4 days. Breech presentation, estimated foetal weight 2644 gm. Placenta posterior low lying covering internal os.
Foetal brain shows non visualization of corpus callosum with dilated lateral ventricles & prominent high up third ventricle, W.A.1716/2020 11 with a large well defined cyst in the region of midline. Findings suggestive of corpus callosum agenesis with hydrocephalus and inter hemispheric cyst/Schizencephaly Her mental status examination - she has no past or family history of psychiatric disorders.
On examination of her mental status she is conscious, oriented, aware of her condition and the baby's condition & she is mentally sound to take decision regarding her pregnancy.
From the above findings the medical board jointly has come to the following conclusions:
1. The foetus is having serious developmental brain anomalies affecting long term quality of life in the form of recurrent seizures, cognitive dysfunction & global developmental delay. Hence, there is an indication for MTP.
2. Since the gestational age is more than 34 weeks there is a possibility of survival of baby at birth.
3. Since the petitioner is having placenta previa, there is a chance of excessive bleeding during delivery."
13. Before adverting to the instant case, let us consider the decisions relied on by the learned counsel for the appellants.
14. In Suparna Debnath and Another v. State of West Bengal and Others, [AIR 2019 Cal. 99], opinion of the Medical Board, Kolkatta, is reproduced:
"13. We have already discussed the finding of the Medical Board. The Medical Board has clearly opined that the baby is likely to be born with Down syndrome, gastrointestinal malformation (esophageal artesia with or without trachea - esophageal fistula), cardiac abnormality and will require W.A.1716/2020 12 surgical intervention, prolonged and complicated neonatal course, the outcome of which is unpredictable. Thus, there is a substantial risk that if the child is born, it is likely to be suffering from grave physical or mental abnormalities as to be seriously handicapped.
14. We need to ponder at this stage as to whether continuance of the pregnancy would involve a risk of causing grave injury to the mental health of the pregnant woman and whether the Constitutional safeguard for protection of life can be extended to her in the facts of the instant case."
15. In Suparna Debnath (cited supra), a Hon'ble Division Bench of the Calcutta High Court, allowed termination of pregnancy even after 26 weeks giving importance to the personal liberty and quality of life under Article 21 of the Constitution of India, and the plight of the child, after birth. It was held that before we look into the scope and application of the law on the subject, we need - at first - to look into the relevant portion of the Medical Board's report, minutely. The Medical Board's report reveals that the foetus has been found to be at a high risk for chromosomal anomaly (Trisomy 21), based on confirmatory tests which were done with amniocentesis and focused ultrasonography. These confirmed it to be a case of Down syndrome along with the possibility of esophageal atresia and cardiac abnormality. The radiological evidence W.A.1716/2020 13 suggested possibility of gastrointestinal malformation (esophageal atresia with or without trachea - esophageal fistula). The report has also suggested that the baby will have a prolonged and complicated neonatal course due to complication of pre-maturity as well as for congenital malformation and the outcome is unpredictable.
16. It was further held that the Medical Board, therefore, has clearly opined that the baby is likely to be born with Down syndrome, gastrointestinal malformation (esophageal atresia with or without trachea
- esophageal fistula), cardiac abnormality and will require surgical intervention, prolonged and complicated neonatal course, the outcome of which is unpredictable. In other words, such gastrointestinal malformation (esophageal atresia with or without trachea - esophageal fistula) along with congenital malformation may not be successfully corrected surgically other than preserving the life of the baby during the course of surgery. The Medical Board has also not suggested any curative procedure for treating Down syndrome (Trisomy 21), which implies that the same cannot be cured. How cardiac abnormality will be corrected has also not been spelt out. As such, it is evident that the baby - even if it is born alive
- will lead a severely compromised existence and will be dependent on parents and the society at large for the rest of his / her life. It is also W.A.1716/2020 14 certain that his / her life span will be unpredictable since it is clearly and specifically stated in the Medical Board's report dated 24.01.2019 that "the outcome is unpredictable".
17. In Neethu Narendran and Another v. State of Kerala and Others, [2020 (3) KLT 155], taking note of the proposed amendment, a learned single Judge of this Court held thus:
"7. This Court is confronted with a situation where carrying out termination of the pregnancy on the 1 st petitioner, at this stage, has a possibility of causing danger to her during the surgery, while refusing permission to terminate the pregnancy may create a situation of severe trauma, not only for the child, but also for the entire family. Continuing the pregnancy can also result in foetal death and danger to the mother. In spite of the dangers involved in conducting medical termination of her pregnancy, the 1st petitioner insists that she undergoes termination of her pregnancy and beseech this Court to grant permission.
8. The statutory prescription as relating to medical termination of pregnancy came into being in 1971 by the enactment of Medical Termination of Pregnancy Act, 1971, hereinafter for brevity referred to as 'The Act'. Prior to coming into force of The Act, the provisions of the Indian Penal Code, enacted almost a century ago, governed the field, and made abortion a crime for which the mother, as well as the abortionist could have been punished. The Act brought in a W.A.1716/2020 15 liberalised approach to termination of pregnancy and contemplated 3 general grounds on which medical termination of pregnancy could be resorted to. One of the grounds was eugenic in nature - where there is substantial risk that the child may suffer from deformities and diseases. Even in such cases, the Act prescribes that the length of pregnancy shall not exceed 20 weeks for a medical practitioner to perform a termination of pregnancy on a woman. However, S.5 of the Act, carves out an exception to the provisions of S.3 and S.4, and provides that the length of pregnancy prescribed shall not apply to medical termination of pregnancy by a registered medical practitioner, if, in his opinion, such termination is necessary to save the life of the pregnant woman.
9. Of late, there has been a trend to permit termination of pregnancies even where the gestational limits have crossed. Taking note of changing pattern in Judicial thinking, an amendment to the Act has been introduced in the Parliament called the Medical Termination of Pregnancy (Amendment) Bill, 2020 on 14/02/2020. It has not yet been approved. However, a reference to Statement of Objects and Reasons to the bill will clearly indicate a shift in the approach towards the gestational period in cases where foetal abnormalities are detected. It is mentioned in the statement of objects and reasons to the amendment bill that "considering the need and demand for increased gestational limit under certain specified conditions and to ensure safety and well being of women, it is proposed to amend the said Act. Besides this, several writ petitions have been filed before the Supreme Court and W.A.1716/2020 16 various High Courts seeking permission for aborting pregnancies at gestational age beyond the present permissible limit on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women". It is proposed as an amendment to S.3 that the provisions relating to the length of 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.
10. Though the above said Bill has not yet become a law, still, it indicates the will of the lawmakers to consider accepting the judicial approach to medical termination of pregnancy in cases where foetal abnormalities are detected, irrespective of the gestational period, as the codified law of the land. It is indicative of giving the right of informed choice through the statute itself to the mother.
11. The proposed amendment is also a reflection of the idea that the decision regarding whether to continue a pregnancy or terminate it should fundamentally be the decision of a woman as it may shape her future and even impact her various other human rights. Compelling by law or otherwise to continue an unwanted pregnancy may in certain circumstances intrude into the right to life and personal liberty, right to health and bodily integrity.
12. Life, as has been constitutionally interpreted, includes the right to live with human dignity with all its splendour. A life that affects the mental health of the mother, causing agony W.A.1716/2020 17 and pain to the entire family is not a life at all. When continuation of the pregnancy could only result in crippling the whole family emotionally, physically and monetarily, it is within the realm of the power of a Court of law to permit medical termination of pregnancy. The rights of an unborn child, when balanced against the rights of a woman bearing the child, the scales will tilt, certainly in favour of the woman. The future well being of the mother, augurs better for the society as a whole, rather than a life devoid of all its splendour. This right of informed choice has already been accepted as a part of the right to liberty of a woman. The life and liberty of the mother cannot be extricated from that of the unborn child as there is no life for a foetus separated from that of its mother. When the life of the mother is in danger, it is certainly a matter that requires greater attention by the Courts of law.
xx xxx xxxx
17. In yet another case in Sarmishtha Chakrabortty and Another v. Union of India Secretary and Others [2018 KHC 7251 : (2018) 13 SCC 339], the Supreme Court permitted termination of pregnancy in the 25th week, after relying upon the medical records that even if the child is born alive, it would have to undergo complex cardiac corrective surgeries stage by stage after birth. In another case Sonali Kiran Gaikwad v. Union of India (MANU/SCOR/43704/2017), the Hon'ble Supreme Court, permitted termination of pregnancy in an instance where the pregnancy had advanced to 28 weeks since the foetus showed multiple serious neurological and skeletal anomalies."W.A.1716/2020 18
18. In Writ Petition (L) No. 4491 of 2020 [ Sunaina Avadhesh Prasad v. State of Maharastra & Ors.], the short facts considered and the order of a learned Single Judge of Bombay High Court dated 22.10.2020 are extracted hereunder:
"1. Petitioner is about 35 years old. She is carrying a fetus of about 32 weeks. She has filed this petition seeking permission for termination of her pregnancy on the ground that the child, if allowed to be born, would suffer from physical or mental abnormalities as to seriously handicap him / her.
2. By order dated 15 October 2020, we requested the Medical Board of Sir J.J. Group of Hospitals, Mumbai to examine the Petitioner and submit a report. The Medical Board of Associate Professor and Head, Department of Obstetrics and Gynecology; Associate Professor, Department of Psychiatry; Professor, Department of Radiology; Professor, Department of C.V.T.S.; Professor and Head, Department of Paediatrics and Professor and Head, Department of Cardiology has examined the Petitioner. The Board has opined as under:-
"AFTER DETAILED HISTORY & EXAMINATION & AFTER PERUSAL OF ULTRASONOGRAPHY REPORTS & 2D ECHO REPORT DONE AT SIR J.J. GROUP OF HOSPITALS, MUMBAI IT IS CONFIRMED THAT FETUS SUFFERS FROM "SINCLE ATRIUM & VENTRICLE WITH TRUNCUS ARTERIOSUS, PULMONARY ATRESIA, WITH PDA, WITH SINGLE AV VALVE WITH MILD AV VALVE REGURGITATION" WHICH IS A SERIOUS CARDIAC ANOMALY HAVING HIGH NEONATAL MORBIDITY & MORTALITY.
SINCE THE PREGNANCY HAS ADVANCED TO 32 WEEKS, WELL BEYOND LEGAL LIMIT OF TERMINATION OF PREGNANCY, PATIENT HAS APPROACHED THE Hon'ble HIGH W.A.1716/2020 19 COURT FOR TERMINATION OF THIS PREGNANCY. TERMINATION OF PREGNANCY CAN BE ALLOWED CONSIDERING COMPLEX HEART DISEASE IN FETUS AS IT MAY LEAD TO PHYSICAL & EMOTIONAL TRAUMA TO MOTHER & FETUS.
SINCE THE PREGNANCY HAS ADVANCED TO 32 WEEKS & PATIENT HAS APPROACHED THE LEGAL AUTHORITIES LATE, THE OUTCOME OF PREGNANCY IF TERMINATED NOW, WILL RESULT IN LIVE BIRTH. IT WILL BE ALMOST EQUIVALENT TO THE PREGNANCY OUTCOME AT TERM. SINCE THE PARENTS ARE DISTRESSED REGARDING THE CONDITION OF THE FETUS WHICH BEARS HIGH NEONATAL MORBIDITY & MORTALITY, PREGNANCY CAN BE TERMINATED AFTER INTRAUTERINE FOETICIDE.
IF THE Hon'ble HIGH COURT PERMITS TERMINATION OF THE PREGNANCY, IT MAY BE DONE IN ANY INSTITUTE WHERE THE FACILITY & EXPERTISE FOR INTRAUTERINE FOETICIDE IS AVAILABLE."
3. It is a settled position of law that a writ court, in appropriate circumstances, can issue directions for medical termination of pregnancy even after the period of 20 weeks specified under the Medical Termination of Pregnancy Act 1971 is over. There is no reason for us to disregard the opinion of the Medical Board. In this case, we take note of the apprehension expressed by the Medical Board that pregnancy can be terminated after intrauterine foeticide which may be done in any hospital / institution where facility and expertise in intrauterine foeticide is available. Learned Government Pleader states that the Government Hospitals / Institution may not be equipped and therefore, Petitioner should be directed to carry out the operation in any hospital / institution which will have the facility and expertise as opined by the Medical Board and the Petitioner may be directed to do so.
W.A.1716/2020 20
4. In view of the above, Petitioner is permitted to carry out medical termination of pregnancy as per the report of the Medical Board in any hospital / institution of her choice.
5. Accordingly, the writ petition is disposed of.
6. This order will be digitally signed by the Private Secretary of this Court. All concerned to act on production by fax or email of a digitally signed copy of this order."
(emphasis supplied)
19. Reading of the above, shows that the gestational age of the foetus was 32 weeks. As per the report of the Medical Board, the fetus suffered from serious cardiac anomaly having high neonatal morbidity and mortality. Even in the judgment in W.P. No.26890 of 2019 dated 14.09.2019 [Mohammed Nashoor K.N. and another v. Lubhna Nashoor & another v. The State of Kerala and others ], relied on by the learned counsel for the appellants, the opinion of the Medical Board was that foetuses would normally die during the pregnancy itself and that if they survive, they may not live.
20. Though, strenuous efforts were made by Mr. Isaac Thomas, learned counsel for the appellants, on the proposed amendment, and relied on the decision in Neethu Narendran (cited supra), we do not accept the contention that, it is well settled that a Bill introduced in the Parliament is not an Act, until passed and received the assent of W.A.1716/2020 21 the President. Intention for any amendment cannot be said to be a law declared.
21. True that the Medical Board, Kottayam, in the report dated 15.12.2020, has opined that the foetus is having serious developmental brain anomalies affecting long term quality of life in the form of recurrent seizures, cognitive dysfunction and global development delay. Hence, there is an indication for MTP.
22. It is also opined by the Medical Board that since the 1 st appellant is having placenta previa, there is a chance of excessive bleeding during delivery. But, the writ court is ordained to save the life of both, the mother and the child to be born.
23. Though, we are in agreement with the contention of the learned counsel for the appellants, that there would be suffering for the mother, to see the child born and grown with brain anomalies affecting long term quality of life, in the form of recurrent seizures, cognitive dysfunction and global developmental delay, and yet, in exceptional cases, termination of pregnancy can be permitted even after the gestational period prescribed, in the light of our discussion, we cannot permit termination of foetus, which, in our view, has life. There is always a possibility of appropriate treatment in future and consequential cure, for the complications noticed W.A.1716/2020 22 by the Medical Board. At any rate, at this juncture, opinion of the Medical Board does not categorically state that there is threat to life of the mother or to the child, to be born.
24. Giving due consideration to the submissions of the learned counsel for the appellants, and the opinion of the Medical Board, Kottayam, dated 15.12.2020, we are not inclined to interfere with the impugned judgment.
In the result, this writ appeal is dismissed.
Sd/-
S. Manikumar, Chief Justice Sd/-
Shaji P. Chaly, Judge sou.
xx W.A.1716/2020 23 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE JUDGMENT DATED 18.02.2019 OF THE CALCUTTA HIGH COURT IN THE CASE OF SUPARNA DEBNATH AND ANOTHER VS. STATE OF WEST BENGAL AND OTHERS, 2019 KHC 2644 CALCUTTA HIGH COURT. ANNEXURE B TRUE COPY OF THE JUDGMENT DATED 30.04.2020 OF THE LEARNED SINGLE JUDGE OF THIS HON'BLE HIGH COURT IN THE CASE OF NEETHU NARENDRAN AND ANOTHER VS. STATE OF KERALA AND OTHERS, 2020 (3) KHC 157 2020(3) KHC 157. ANNEXURE C TRUE COPY OF THE ORDER DATED 22.10.2020 OF THE HON'BLE HIGH COURT OF JUDICATURE AT BOMBAY IN WRIT PETITION (L) NO.4491 OF 2020 IN THE CASE OF SUNAINA AVADHESH PRASAD VS. STATE OF MAHARASTRA AND ORS. ANNEXURE D 14.10.2019 OF THE LEARNED SINGLE JUDGE OF THIS HON'BLE HIGH COURT IN THE CASE OF MOHAMMED NASHOOR AND ANOTHER VS. THE STATE OF KERALA AND OTHERS.