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Himachal Pradesh High Court · body

2017 DIGILAW 1173 (HP)

Geeta Devi v. State of H. P.

2017-10-17

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

body2017
JUDGMENT : Dharam Chand Chaudhary, J. 1. The petitioner aged 19 years, having mild to moderate mental retardation and an unfortunate mother has approached this Court for seeking a direction to the Medical Superintendent, Kamla Nehru Hospital for Mother and Child, Shimla to arrange for abortion of a foetus in her womb on the grounds inter-alia that it is risky for her to complete the normal period of pregnancy and deliver child on the due date. 2. On very first day of hearing i.e. 6.10.2017, following order came to be passed in this matter: “2. In the meanwhile, we direct respondent No. 2 to have the petitioner (hereinafter referred as to ‘X’) medically examined from a Medical Board comprising of at least five doctors, to be headed by Head of the Department of Gynecology of any of the State Level Hospitals in the State of Himachal Pradesh. Needless to add, respondent No. 2 shall consider directions issued by the Hon’ble Supreme Court from time to time and more specially order, dated 7th February, 2017, passed in Writ Petition (Civil) No. 81 of 2017, titled as Mrs. X and Others Passed in Civil Appeal No. 10463 of 2017, titled as Ms. Z vs. The State of Bihar and Others. Needful shall be done within a period of one week. 3. We clarify that the Medical Board shall consider the medical health and condition of the foetus, as also the mother, more so, in the light of the provisions of the Medical Termination of Pregnancy Act, 1971. 4. We are informed that ‘X’ is physically challenged and as such, perhaps she may not be able to travel alone to the place of sitting of the Medical Board. In these circumstances, we direct respondent No. 2 to ensure that she be conveniently and comfortably brought to the place of her examination in an ambulance and taken back to the place of her residence in the company of a lady medical attendant. 5. We also direct Member Secretary, H.P. State Legal Services Authority to follow up with ‘X’ for ensuring compliance of the order. Registrar General is directed to communicate the order to the Member Secretary, H.P. State Legal Services Authority. List on 13th October, 2017.” 3. 5. We also direct Member Secretary, H.P. State Legal Services Authority to follow up with ‘X’ for ensuring compliance of the order. Registrar General is directed to communicate the order to the Member Secretary, H.P. State Legal Services Authority. List on 13th October, 2017.” 3. Therefore, while issuing notice to the respondents, a direction was given for conducting medical examination of the petitioner by a Medical Board, left open to be constituted by the 2nd respondent. Consequently, the Medical Board comprising following six doctors, expert in their respective field came to be constituted:- (i) Dr. Bishan Dhiman (ii) Dr. Anupam Jhobta (iii) Dr. Rita Mittal (iv) Dr. Piyush Kapila (v) Dr. Prince Raj (vi) Dr. Dinesh Sharma 4. The Chief Medical Officer, Kullu was directed through Director, Health Services, Himachal Pradesh to provide a vehicle/ambulance for transportation of the petitioner assisted by one para medical staff from her native place at Banjar to Kamla Nehru Hospital, Shimla. The petitioner accompanied by one para medical staff was brought to Kamla Nehru Hospital along-with her relatives on 10.10.2017. On her arrival, she was subjected to preliminary examination immediately and all steps were taken to ensure her care and comfort in the hospital. 5. However, on the returnable date i.e. 13th October, 2017, the report submitted by the Medical Board was not available on record. The matter, as such, was adjourned to 16th October, 2017, with a direction to the doctors who examined the petitioner to remain present in person to assist the Court. Yesterday on 16.10.2017 also, the report was not on record, therefore, a direction was issued to the respondents to place the same on record by way of affidavit. Now when this matter was called, learned Additional Advocate General has produced the report on record along with the affidavit of Dr. Piyush Kapila, one of the members of the Medical Board. We have allowed the same to be taken on record. 6. The examination of the petitioner by the Medical Board comprising six doctors expert in their respective field amply demonstrates that the petitioner a mild and moderately mentally retarded mother is carrying the pregnancy of about 32 weeks. The report of ultrasound reveals that a single live intra-uterine foetus having abnormal head growth is in her womb. The foetal head is enlarged and still growing due to fluid accumulation. The report of ultrasound reveals that a single live intra-uterine foetus having abnormal head growth is in her womb. The foetal head is enlarged and still growing due to fluid accumulation. Also that, in case of vaginal delivery, destructive operation upon the foetal head may be required and in that event life of the foetus may also jeopardize. The termination of pregnancy at this stage may need major surgical procedure with the consequences such as, bleeding, sepsis and anesthesia hazards. In the event of pregnancy is to be continued the foetus may have severe cognitive and motor impairments even after surgical procedure also. As a matter of fact, the opinion of the Medical Board reads as follows: Opinion of the Medical Board dated 16.10.2017 The board members appeared in the Hon’ble High Court on 16.10.2017 at 10 AM. After deliberations the Hon’ble Court directed the board to simplify the opinion in layman’s language. The board again met in the office of Medical Superintendent Kamla Nehru Hospital for Mother and Child Shimla and were unanimously of the opinion that: 1. Risk to Child (a) Because of abnormal foetal head which is enlaged and still growing due to fluid accumulation which has led to severe thinning of brain which may result in mental retardation. (b) The possibility of this child’s survival outside the womb of the mother is low. (c) Even if the child survives, the child will require surgical intervention and even after surgical intervention there may be severe mental retardation to the child. 2. Risk to Mother: (a) As detailed in the previous medical opinion of the board the mother is having mild to moderate mental retardation. (b) Normal vaginal delivery is not possible in this case due to short stature. (c) Only option is surgical intervention. More the pregnancy in this case is going to advance, head size will increase further and there will be more complications in the surgery and thus more risk to the mother as well. (d) Inspite of surgical approach to deliver the baby the head of the baby may be required to be decompressed by taking out fluid which further limits the chances of survival. (e) During the investigations of the mother on 13.10.2017, she has been found suffering with suspected Atrial Septal Defect, which is hole in the heart which may further lead to the complications of surgery. Sd/- Dr. (e) During the investigations of the mother on 13.10.2017, she has been found suffering with suspected Atrial Septal Defect, which is hole in the heart which may further lead to the complications of surgery. Sd/- Dr. Bishan Dhiman Sd/- Dr. Anupam Jhobta Sd/- Dr. Rita Mittal Sd/- Dr. Piyush Kapila Sd/- Dr. Prince Raj Sd/- Dr. Dinesh Sharma 7. It is thus seen that the mother, petitioner herein having mild to moderate mental retardation and short stature, the only available option as per the medical opinion is left with i.e., to go for premature delivery with surgical intervention because to allow the pregnancy to continue up to its normal tenure, the head size of the foetus will increase further and in that event the surgery is going to become more complicated, besides causing more risk to her life. In that event even the head of the baby (foetus) may also necessitate decompression by taking out fluid out of it which may also limit the chances of survival of the baby. The petitioner herein is also found to be suffering from suspected Atrial Septal Defect i.e. hole in the heart, which may lead to further complications at the time of surgery. 8. Not only this but as per medical opinion, the enlarged head of foetus is still growing further due to fluid accumulation which in the opinion of the Board may lead to severe thinning of brain and ultimately result in mental retardation. The possibility of survival of the baby outside the womb of the mother would also be low. Not only this but even if the baby survives, may require surgical intervention and despite that also, the baby may suffer with severe mental retardation. The report submitted by the Medical Board is, therefore, exhaustive one and self speaking. On perusal of the report, we are fully satisfied that allowing the pregnancy to complete its normal tenure and delivery of foetus/baby on due date is dangerous not only to the life of the petitioner but the foetus/baby may also not survive. The examination of the petitioner, general, medical, radiological and psychiatric, therefore, amply demonstrates that to allow the pregnancy to continue is not in the interest of the petitioner nor in that of foetus in her womb. The anaesthetic and obstetric evaluation also reveals that condition of the foetus is not compatible with extra uterine life. The examination of the petitioner, general, medical, radiological and psychiatric, therefore, amply demonstrates that to allow the pregnancy to continue is not in the interest of the petitioner nor in that of foetus in her womb. The anaesthetic and obstetric evaluation also reveals that condition of the foetus is not compatible with extra uterine life. In other words, the foetus may not be able to survive outside the uterus, besides causing danger to the life of the petitioner, if she is made to wait for the delivery of baby on due date. The continuation of pregnancy, therefore, endangers the physical and mental health of the petitioner. Therefore, we find the present a fit case where the risk of termination of her pregnancy is within the acceptable limits. In a similar case titled Meera Santosh Pal and Others vs. Union of India and Others, Writ Petition (Civil) No. 17 of 2017, decided on 16th January, 2017, having similar set of facts and circumstances, the Apex Court has held as follows: “This Court, as at present being advised, would not enter into the medico-legal aspect of the identity of the fetus but consider it appropriate to decide the matter from the standpoint of the right of petitioner no. 1 to preserve her life in view of the foreseeable danger to it, in case she allows the current pregnancy to run its full course. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull. In Suchita Srivastava and Another vs. Chandigarh Administration, (2009) 9 SCC 1 , a bench of three Judges held a woman’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution. The Court there dealt with the importance of the consent of the pregnant woman as an essential requirement for proceeding with the termination of pregnancy. The Court observed as follows:- “22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The Court observed as follows:- “22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Further more, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.....” The crucial consideration in the present case is whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though, the pregnancy is into the 24 week, having regard to the danger to the life and the certain inability of the fetus to survive extra uterine life, we consider it appropriate to permit the petitioner to terminate the pregnancy. The overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it. In these circumstances given the danger to her life, there is no doubt that she has a right to protect and preserve her life and particularly since she has made an informed choice. The exercise of her right seems to be within the limits of reproductive autonomy. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit petitioner no. 1 to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. The learned Solicitor General Mr. The exercise of her right seems to be within the limits of reproductive autonomy. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit petitioner no. 1 to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. The learned Solicitor General Mr. Ranjit Kumar who took notice on the last date of hearing has not opposed the petitioners prayer on any ground, legal or medical. We order accordingly. The termination of pregnancy of petitioner no. 1 will be performed by the Doctors of the hospital where she has undergone medical check-up. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on petitioner No. 1 for termination of her pregnancy. With the aforesaid directions, the instant writ petition is allowed in terms of prayer (a) seeking direction to the respondents to allow petitioner no. 1 to undergo medical termination of her pregnancy.” 9. It is seen that points in issue in the present writ petition are squarely covered by the judgment ibid in favour of the petitioner because here also as per the report submitted by the Medical Board, continuance of pregnancy involves risk to the life of the petitioner and in case she is not permitted to terminate the pregnancy, likely to suffer grave injury, not only to her physical, but mental health also. The relief sought in this writ petition, therefore, is also covered by Section 3(2)(i) of the Medical Termination of Pregnancy Act, 1971. True it is that the pregnancy is at an advance stage i.e. 32 weeks, however, having regard to the danger to the life of the petitioner and expert opinion that the foetus may not survive to extra uterine life, we deem it appropriate to grant permission to the petitioner to terminate the pregnancy. Above all, in view of the ratio of the judgment of the Apex Court in Meera Santosh Pal’s case supra, the petitioner has every right to take all steps necessary to preserve her own life against the avoidable danger to it. It is also necessary to protect and preserve her life. Learned Advocate General assisted by Mr. Above all, in view of the ratio of the judgment of the Apex Court in Meera Santosh Pal’s case supra, the petitioner has every right to take all steps necessary to preserve her own life against the avoidable danger to it. It is also necessary to protect and preserve her life. Learned Advocate General assisted by Mr. M.A. Khan, learned Additional Advocate General is also not averse to the termination of pregnancy the petitioner is carrying in the peculiar facts and circumstances of this case. 10. In view of what has been said hereinabove, we allow the present writ petition and dispose of the same with the following directions:- (i) The 5th respondent i.e. Medical Superintendent, Kamla Nehru Hospital, Shimla is directed to arrange for termination of the pregnancy of petitioner by the expert Gynaecologist's under the supervision of the Medical Board constituted pursuant to the orders passed by this Court at the earliest possible and without any further loss of time. (ii) Since in the opinion of the Medical Board, the petitioner is mild to moderate mentally retarded mother, therefore, in addition to her own affidavit in support of the writ petition, consent of her father or mother, as the case may be, be obtained before she is subjected to surgical intervention (ceasarean) enabling her to deliver the baby prematurely. (iii) The DNA of the newly born baby be preserved by the team of doctors for being used during the course of investigation, inquiry and trial in criminal case stated to be registered in Police Station, Banjar, District Kullu, H.P. under Sections 376(2) (L) of the Indian Penal Code and also in other civil consequences which may follow after premature delivery and survival of the newly born. (iv) Other consequential issues if crop-up on the surgical intervention and birth of newly born baby are left open to be considered and decided by the competent forum in appropriate proceedings, if initiated in accordance with law. 11. The writ petition though is disposed of with the above directions, however, there shall be a direction to respondent No. 5, the Medical Superintendent, Kamla Nehru Hospital for Mother and Child, Shimla to swear in an affidavit indicating therein the outcome of the surgical intervention to be conducted pursuant to this judgment on 7th November, 2017 at 4.15 P.M. for which the matter shall be listed in the Chambers of one of us. 12. 12. An authenticated copy of this judgment be supplied to learned Additional Advocate General and learned counsel for the petitioner for compliance.