Allowed

Taniya Merlin Gomez v. State of Kerala

Kerala HC6 Jul 2021WP(C)/13165/2021

Case brief

AI extract

What is this about?

The petitioners, a pregnant woman and her father, sought directions to medically terminate a pregnancy allegedly exceeding the statutory time limit due to fetal abnormalities. The High Court, relying on a Medical Board report confirming lethal congenital anomalies, allowed the writ petition and permitted the termination.

What did the court decide?

The writ petition was allowed, and the petitioners were permitted to undergo the procedure for termination of the pregnancy.

Taniya Merlin Gomez Vs State of Kerala — Medical Negligence | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 6^TH DAY OF JULY 2021 / 15TH ASHADHA, 1943

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WP(C) NO. 13165 OF 2021

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PETITIONERS:

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1 TANIA MERLIN GOMEZ AGED 30 YEARS D/O.THOMAS BRIAN GOMEZ, GOMEZ VILLA, VADUTHALA P.O., ERNAKULAM.

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2 BENNEN D SILVA, AGED 64 YEARS, F/O PAUL D'SILVA, KALLELIPURAYIDAM, AVALOOKUNNU P.O., POONTHOPU WARD, ALAPPUZHA.

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BY ADVS. R.SUNIL KUMAR A.SALINI LAL

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RESPONDENTS:

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1 THE STATE OF KERALA REP BY SECRETARY TO GOVERNMENT, DEPT OF FAMILY AND WELFARE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE SUPERINTENDENT KOTTAYAM MEDICAL COLLEGE, KOTTAYAM - 686 008.

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3 THE HEAD OF THE DEPARTMENT DEPARTMENT OF GYNAECOLOGY, KOTTAYAM MEDICAL COLLEGE, KOTTAYAM-686 008

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4 DR.SREELATHA WARRIER DEPARTMENT OF GYNAECOLOGY, LEKSHMI HOSPITAL, DIWAN'S ROAD, ERNAKULAM-683101.

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W.P.(C) No.13165 of 2021

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5 THE SUPERINTENDENT ALAPPUZHA MEDICAL COLLEGE, VANDANAM, ALAPPUZHA - 688 005

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6 THE HEAD OF THE DEPARTMENT, DEPARTMENT OF GYNAECOLOGY, ALAPPUZHA MEDICAL COLLEGE, VANDANAM, ALAPPUZHA-688 005

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BY ADV:

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SMT.PRINCY XAVIER, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.13165 of 2021

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W.P.(C) No.13165 of 2021

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J U D G M E N T

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The first petitioner is the daughter of the second petitioner. The first petitioner is undergoing 25 th week of pregnancy. She seeks, in this proceedings, directions to the respondents to allow her to terminate her pregnancy medically. It is alleged by the petitioners that since the outer time limit prescribed in terms of the provisions of th e Medical Termination of Pregnancy Act, 1971 for termination of the pregnancy is over, the fifth respondent is refusing to terminate her pregnancy. The case set out by the petitioners in the writ petition is that there is a substantial risk that if the child were born, it would suffer from abnormalities as to be seriously handicapped.

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2 . Heard the learned counsel for the petitioners as also the learned Government Pleader.

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W.P.(C) No.13165 of 2021

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3 . On 2.7.2021, this court passed the following

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interim order :

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“The fifth respondent is directed to constitute a Medical Board to examine the first petitioner and ascertain as to whether the continuance of the pregnancy of the first petitioner would involve any risk to the life of the first petitioner or any g rave injury to her physical or mental health or there is any substantial risk that if the child were born, it would suffer from any physical or mental abnormalities as to be seriously handicapped.

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The Medical Board shall be constituted within two days from the date of production of a copy of this order, and the first petitioner shall make herself available for examination before the Medical Board as and when informed by the fifth respondent.

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List the matter on 06.07.2021. The learned Government Pleader shall make available the report of the medical examination on 06.07.2021”.

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4 . Based on the interim order aforesaid, an

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Emergency Medical Board constituted for the purpose at the Government T.D.Medical College Hospital, Alappuzha examined the first petitioner on 5.7.2021. The relevant portion of the report prepared by the said Medical Board which is made

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W.P.(C) No.13165 of 2021

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available to this court reads thus:

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“As per the available records the fetus may be suffering from Meckel Gruber Syndrome which is lethal.

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The Medical Board clinically assessed the patient, on examination her general condition is good. Systems are within normal limits. P/A Uterine size corresponds to 26 weeks.

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Obstetric ultrasound done at TDMCHA, Dept of Radiodiagnosis on 5.7.2021 also showed multiple anomalies which is lethal (Report attached).

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Conclusion : Fetus is suffering from Multiple congenital anomalies which is not compatible with life. At present mother is fit for undergoing MTP. So termination of pregnancy may be considered.”

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5 . As discernible from the extracted report, the

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Medical Board constituted pursuant to the interim order consisting of six specialist doctors, is of the view that the fetus is suffering from Meckel Gruber Syndrome and other congenital anomalies, which is not compatible with life. The Medical Board is also of the view that the first petitioner is fit for undergoing medical termination of pregnancy.

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6 . The freedom of a pregnant woman in making a

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choice as to whether the pregnancy should be continued

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W.P.(C) No.13165 of 2021

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cannot be taken away. Likewise, the right of the mother to terminate the pregnancy medically even after the permissible period in terms of the provisions of the Medical Termination of Pregnancy Act, has been recognised by the courts, if there is substantial risk that if the child were born, it would suffer from abnormalities as to be seriously handicapped.

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In the result, the writ petition is allowed and the first petitioner is permitted to undergo the procedure for termination of the pregnancy. The respondents concerned would be free to undertake the said procedure at the risk of the first petitioner.

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Sd/P.B.SURESH KUMAR, JUDGE.

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W.P.(C) No.13165 of 2021

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APPENDIX

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PETITIONER'S EXHIBITS:

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Exhibit P1 COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE ALAPPUZHA MUNICIPALITY DATED 30/05/2018

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Exhibit P2 COPY OF THE SCAN REPORT DATED 7/6/21 Exhibit P3 COPY OF THE SCAN REPORT DATED 17/6/21 OF THE AMRITHA INSTITUTE OF MEDICAL SCIENCES

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Exhibit P4 COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 28/6/21

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Exhibit P5 COPY OF THE JUDGMENT IN W.P.(C) NO.22426/2020 DATED 23/10/2020

Taniya Merlin Gomez v. State of Kerala

Case brief

What is this about?

What did the court decide?

Taniya Merlin Gomez v. State of Kerala

Case brief

What is this about?

What did the court decide?

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