Dismissed

Komal Apurva Shah v. the Union of India through the Secretary , Ministry of Law and Justice and Ors.

Bombay HC14 Aug 2018WP/8793/2018

Case brief

AI extract

What is this about?

In a writ petition seeking directions to permit medical termination of pregnancy for a non-viable fetus, the Bombay High Court rejected the plea. The Court upheld the medical board's conclusion that the procedure posed severe health risks to the petitioner due to her pre-existing conditions and held that the nature should take its course.

What did the court decide?

The writ petition was rejected; the petitioner was not permitted to undergo medical termination of pregnancy.

Komal Apurva Shah Vs the Union of India through the… — Service and Employment | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL WRIT PETITION NO.8793 OF 2018

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Komal Apurva Shah.... …Petitioner vs Union of India & ors ... ...Respondents

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Ms.Neha Philip I.b Ms.Kranti L.C. for Petitioner. Mr.A.B.Vagyani Government Pleader a/w Ms.Kavita Solunkhe Asst.Government Pleader for State Ms.Prachi Tatake for Respondent nos.1 & 3-Union of India Ms.Oorja Dhond for Respondent no.4/BMC Dr.Padmaja Samant K.E.M.Hospital present

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--- CORAM : NARESH H.PATIL,ACTING C.J.& G.S.KULKARNI,JJ DATED : 14TH AUGUST, 2018 ---

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P.C. :

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The petitioner - Komal Apurva Shah age 34 years has filed this petition under Article 226 of the Constitution of India seeking directions to the respondents to permit her to undergo medical termination of pregnancy at the medical facility of her choice. It is also her prayer that a medical committee be constituted for her examination and assist this Court in arriving at a decision on the prayer as made in the petition.

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The petitioner has prayed for the said reliefs on the basis of a diagnostic report obtained by her from Dr.Nikhil Patkar of Anand

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Diagnostic Centre which is a ultra-sonography report recording that the petitioner is 27 weeks and 4 days pregnant. It is observed in this report that the kidneys of the fetus are not visualized and of suggestive of bilateral renal agenesis. The report records as under:

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“A single live intrauterine gestation of 27 weeks 4 days is noted with total anhydramnious. Both fetal kidneys are not visualized suggestive of bilateral renal agenesis. Cardiothoracic ratio is increased with reduced chest circumference suggestive of poulmonary hyupoplasis. No fetal limp movements were seen with limbs in fixed flexion contractures. Screening doppler shows increased diastolic flow in MCA with reversed cerebroplacental ratio suggestive of fetoplacental insufficiency.”

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The petitioner was also examined by Dr.Divyani K.Patel Consulting Obstetrician and Gynaecologist of Vanita General Hospital, Malad (East) Mumbai who also records “ non-viable pregnancy beyond 20 weeks of gestation, followed by termination of pregnancy .”

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By an order dated 8^th August, 2018 we directed the Dean K.E.M. Hospital, Mumbai to constitute a committee of experts to examine the petitioner, and place on record of this petition, a report as to whether termination of the pregnancy at this stage was possible.

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The Medical Board constituted in pursuance of our order dated 10^th August 2018 consisted of the following thirteen experts, who would examine the petitioner :

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“Dr.Avinash N.Supe, Director (Medical Education & Major Hospitals) & Dean (G & K)-Chairman.

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Dr.Padmaja Samant, Addl.Professor and Unit Head, Obstetrics & Gynecology, Dr.Himangi S.Warke, Associate Professor, Obstetrics & Gynecology,

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Dr.Himangi S.Warke, Associate Professor, Obstetrics & Gynecology.

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Dr.Shubhangi Parkar, Professor & HOD, Psychiatry.

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Dr.Kavita Joshi, Associate Professor, Medicine.

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Dr.R.D.Patel, Professor and acting HOD, Anesthesia.

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Dr.Hemangini Thakkar, Additional Professor,Radiology.

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Dr.Nalini Shah, Professor and Head Endocrinology.

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Dr.Sridhar Sundaram, Assistant Professor, Department of Gastroenterology.

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Dr.Atul Dongre, Associate Professor Dermatology.

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Dr.Neeraj Jain, Associate Professor Neurology.

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Dr.Sandesh Parelkar H.O.D. pediatric surgery.

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Dr.Ruchi Nanavati H.O.D. neonatology. ”

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The petitioner was examined by each of the above experts of

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the Medical Board who recorded their individual findings. On the basis of

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the findings of the experts the Medical Board has reached the following conclusion :

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“The patient's dates are uncertain due to irregular cycles and only late scan is available. She is about 28 weeks by clinical evaluation and about 27 weeks by sonography done in KEMH GSMC.

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“The diagnosis of bilateral renal agenesis has been confirmed on ultrasonography.

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Due to her epilepsy, very low weight, celiac disease and anemia, Mrs.KomalShah is a high risk case for any intervention.

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The anomaly is lethal and affects development of lungs too. The near certain loss of the baby is a cause of great distress to the parents, but, it does not warrant termination of pregnancy now in a woman with

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multiple health issues as mentioned above.

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Uninduced natural labour is more likely to have smooth progress and fewer complications like excessive contractions, need for surgical intervention, trauma, bleeding, future problems that ensue with scarred uterus. Though the petitioner and her husband are at present distressed with the thought of the near certain perinatal fatality, they both have to clearly understand these maternal risks mentioned above.

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It will be prudent to let the nature take its own course.

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The Board does not advise medical termination of pregnancy for the petitioner on medical grounds.

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The Board also requests the Court to grant immunity from any medico legal liability due to giving opinion as asked by the honourable Court.” (Emphasis added)

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We had also the valuable benefit of the presence of Dr.Padmaja

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Samant, Additional Professor and Unit Head, Obstetrics & Gynecology K.E.M. H.G.S.M.C. who has assisted us in explaining different facets of the report of of the Medical Board. Dr.Padmaja Samant says that chance of intra uterine demise in such cases is very high. She says that if the child is born, it would perish within a day or two of the birth. She has emphasized that due to the weak clinical condition of the petitioner, medical termination of pregnancy is definitely not advisable for the petitioner as observed by the Medical Board. She says that this is a case where the nature should take its own course and the doctors would aid the nature.

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Learned counsel for the petitioner however, is of the contrary opinion. Her submission is that when the ultimate consequence is that the child is not to survive, then medical termination ought to be permitted. The Court should therefore grant relief to the petitioiner.

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We have heard learned counsel for the parties. We have perused the report of the Medical Board and the record. In the facts of the case, we are not persuaded to accept the plea as urged on behalf of the petitioner that the petitioner be permitted to undertake medical termination of her pregnancy. No doubt, that this is a case of an abnormal fetus and chances of survival of the fetus are nil, there is also a possibility of intrauterine demise of the child, however, the petitioner has a variety of problems. She suffers from epilepsy. She is of very low weight about 35 kg. She has celiac disease and anemia. In these circumstances, the Medical Board has observed that the petitioner's “ is a case of very high risk ” for any intervention of a medical termination of pregnancy. In our clear opinion, the findings and the conclusions as recorded by the Medical Board cannot be discarded in the fact situation so as to permit the petitioner to undertake medical termination of her pregnancy. Such permission if granted would be against the health and well being of the petitioner. For these reasons, we cannot grant any relief to the petitioner.

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The findings of the Medical Board including the portion which pertain to the medico legal immunity stand accepted in totality for all the members of the Medical Board as also for Dr.Padmaja Samant in her explanation and assistance to the Court.

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We express our appreciation to the valuable assistance

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provided by Dr.Padmaja Samant.

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Writ Petition is accordingly rejected. No costs.

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(G.S.KULKARNI, J} ACTING CHIEF JUSTICE

Komal Apurva Shah v. the Union of India through the Secretary , Ministry of Law and Justice and Ors.

Case brief

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Komal Apurva Shah v. the Union of India through the Secretary , Ministry of Law and Justice and Ors.

Case brief

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