The Kerala HC rejected a petitioner's plea for medical termination of pregnancy at 35 weeks and 5 days due to fetal anomalies. The single judge held that the gestational age exceeded permissible limits for such interventions.
Termination of pregnancy application dismissed due to gestational age exceeding 32 weeks limit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP(C).No.27842 OF 2020(E)
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942
WP(C).No.27842 OF 2020(E)
PETITIONER/S:
1 AKHILA KURIAN ALIAS AKHILA ANN BABY AGED 30 YEARS WIFE OF KURIAN JOSE, ELENGICAL HOUSE, KOTHAMANGALAM P.O., ERNAKULAM-686 691.
2 KURIAN JOSE, AGED 33 YEARS SON OF 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.
3 THE DIRECTOR OF HEALTH SERVICES,GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695 035.
WP(C).No.27842 OF 2020(E)
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ROAD, ERNAKULAM-682 011.
7 THE SUPERINTENDENT, GOVERNMENT MEDICAL COLLEGEKOTTAYAM, GANDHI NAGAR, KOTTAYAM-686 008.
OTHER PRESENT:
SMT.VINITHA.B,GP ASGI SRI.P.VIJAYAKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.27842 OF 2020(E)
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JUDGMENT
Dated this the 16th day of December 2020
Petitioners are husband and wife, who have approached this Court seeking permission for carrying out medical termination of pregnancy at a gestational age of 34 weeks, producing Exts.P5 to P10 reports pointing out serious abnormalities in the foetus.
14.12.2020 this Court directed the 7th respondent to convene a medical board in order to examine the 1st petitioner and to
report before this Court the medical condition of the 1st petitioner as well as the foetus. Accordingly, a medical board was constituted and the 1st petitioner was examined.
available the medical report furnished by the Superintendent of the Government Medical College, Kottayam , which would show that the medical board was convened on 15.12.2020 with the following
members :
“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
7. Dr.Arun.P.Ajith, Asst.Professor, Radio diagnosis.
WP(C).No.27842 OF 2020(E)
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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 intra uterine 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, with a large well defined cyst in the region of midline.
Findings suggestive of corpus callosum agenesis with hydro cephalus 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 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”.
weeks and 5 days. Learned counsel for the petitioners relying on
the judgments of the Division Bench of the Calcutta High Court reported in Suparna Debnath and another vs. State of West Bengal
and others: 2019 KHC 2644, judgment of this Court in Neethu Narendran and another vs. State of Kerala and others : 2020 (3)
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WP(C).No.27842 OF 2020(E)
KHC 157, the judgment dated 14.10.2019 in WP(C) No.26890/2019 and the judgment of the Division Bench of the High Court of Bombay in WP(L) No.4491/2020 dated 22.10.2020 argued that under Article 21 of the Constitution of India, the 1st petitioner is having every right to decide on the question of continuance of her pregnancy, which is a right to live with human dignity also and hence she has to be permitted to undergo medical termination of pregnancy. It is also stated that the petitioners are willing to take the risk on account of the same.
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WP(C).No.27842 OF 2020(E)
conclusion that the foetus is having serious developmental brain anomalies, it has found the possibility of survival of 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.
Therefore, the Writ Petition is dismissed.
Sd/-
P.V.ASHA
JUDGE
rkc
WP(C).No.27842 OF 2020(E)
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APPENDIX
PETITIONER'S/S EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF FIRST EARLY PREGNANCY SCAN REPORT CARRIED OUT AT MAR SLEEVA MEDICITY, PALAI DATED 08.06.2020. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE OBSTETRIC ULTRASOUND SCAN CARRIED OUT ON THE 1ST PETITIONER AT MAR SLEEVA MEDICITY, PALAI DATED 18.07.2020. |
| EXHIBIT P3 | TRUE COPY OF REPORT OF THE ULTRASOUND SCAN DATED 18.08.2020 CARRIED OUT ON THE 1ST PETITIONER AT MAR SLEEVA MEDICITY, PALAI. |
| EXHIBIT P4 | TRUE COPY OF TARGETED SCAN FOR FOETAL MORPHOLOGICAL ANOMALY DETECTION (4D) REPORT DATED 03.09.2020. |
| EXHIBIT P5 | TRUE COPY OF THE THIRD TRIMESTER OBSTETRIC SCAN CARRIED OUT ON 1ST PETITIONER ON 04.12.2020. |
| EXHIBIT P6 | TRUE COPY OF CIMAR FERTILITY CENTRE REPORT DATED 04.12.2020. |
| EXHIBIT P7 | TRUE COPY OF COMMUNIQUE ISSUED BY CIMAR FOR THE BENEFIT OF THE 1ST PETITIONER'S CONSULTING GYNECOLOGIST, DATED 05.12.2020. |
| EXHIBIT P8 | TRUE COPY OF AMRITA INSTITUTE OF MEDICAL SCIENCES (AIMS) SCAN REPORT DATED 07.12.2020. |
| EXHIBIT P9 | TRUE COPY OF WRITTEN COMMUNICATION DATED 11.12.2020 ISSUED BY AMRITA INSTITUTE OF MEDICAL SCIENCES TO THE 1ST PETITIONER'S CONSULTING GYNAECOLOGIST. |
| EXHIBIT P10 | TRUE COPY OF RENAI MEDICITY, PALARIVATTOM, MEDICAL REPORT DATED 11.12.2020. |
| EXHIBIT P11 | TRUE COPY OF JUDGMENT DATED 13.11.2020 OF THIS HON'BLE COURT IN WPC NO.24031 OF 2020 OF THUSHARA GEORGE AND ANR. V. THE UNION OF INDIA & ORS. |
| EXHIBIT P12 | TRUE COPY OF THIS HON'BLE COURT'S JUDGMENT DATED 26.06.2020 IN WPC 11726 OF 2020 IN DHANYA HARI & ANR. V. THE UNION OF INDIA & ORS. |
2 issues framed by the court
Whether permission for medical termination of pregnancy can be granted at a gestational age of 35 weeks and 5 days.
Whether the mother's right to dignity under Article 21 overrides the right to life of the foetus at this advanced stage of pregnancy.
Colour shows how this judgement treated each authority
Suparna Debnath and another vs. State of West BengalReferred¶64
Suparna Debnath and another vs. State of West Bengal and others: 2019 KHC 2644
Neethu Narendran and another vs. State of KeralaReferred¶64
Neethu Narendran and another vs. State of Kerala and others: 2020 (3) KHC 157
WP(C) No.26890/2019Referred¶64
WP(L) No.4491/2020Referred¶64
1 provisions across 1 enactments
AKHILA KURIAN ALIAS AKHILA ANN AND ANR
THE UNION OF INDIA AND ORS
P.V. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
