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2025 DIGILAW 1804 (KER)

Syeda Shazia Talath, W/o. Jibin Thomas v. Union of India

2025-07-03

AMIT RAWAL, P.V.BALAKRISHNAN

body2025
JUDGMENT : Amit Rawal, J. Appellant-petitioner had approached this Court with the following reliefs: i) To issue a writ of mandamus or other appropriate form of writ directing the Respondent Nos. 2 and 4 to convene a Medical Board, as contemplated under the relevant Government Orders/Circulars, to evaluate the fetal parameters relating to the pregnancy of the Petitioner No.1 and to express an opinion as to whether her pregnancy is liable to be medically terminated or not; ii) issue a writ of mandamus or other appropriate form of writ permitting/directing Respondent No.5 or any other registered medical practitioner to medically terminate the pregnancy of the Petitioner No. 1, in the interest of justice. iii) Such other matters that the Petitioners may pray for and which this Honourable Court may deem it fit and proper to grant. 2. The aforementioned relief, on the basis of the pleadings and as well as the reply of the other side, came up for consideration before the Single Bench of this Court and the Single Bench vide order dated 20.6.2025 directed the District Medical Officer, Ernakulam to assess the following points. (i) Whether continuance of the 1 st petitioner's pregnancy would involve risk to her life or grave injury to her physical or mental health. (ii) Whether there is a substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped and if so, the nature of abnormalities and (iii) Whether, having regard to the advanced stage of pregnancy, there is any danger (other than usual danger which arises even in spontaneous delivery at the end of full term) if the pregnant mother is permitted to terminate her pregnancy. 3. The reports Exts.P3 and P4 with the Medical Board, the court in paragraph 12 of the judgment under challenge found that there exists a considerable reason that the baby will be born with Down's syndrome if born alive and serious cardiac abnormalities which may require surgery and follow up treatment and accordingly disposed of the writ petition by issuing following directions: 1.The fourth respondent shall take immediate measures for constituting a Medical Team to conduct the termination of the petitioner’s pregnancy, on production of a copy of this judgment. 2. 2. The Medical Team shall, in their discretion and best judgment, adopt the best procedure recommended in the medical science to terminate the pregnancy and save the life of the 1st petitioner. 3. The petitioner shall file an undertaking authorising the fourth respondent to terminate the pregnancy at their risk and costs. 4. If the foetus is born alive, the hospital shall render all the necessary assistance, including incubation and treatment at any super-specialty, to ensure that the foetus survives. The baby shall be offered the best medical treatment, and the petitioners shall take full responsibility and bear the expenses for the baby. 5. Before conducting the termination of the pregnancy, the Medical Board shall reconfirm the fetal abnormalities by performing a final scan. 6. The party shall appear before the Superintendent of Medical College Hospital, Kalamassery on 26.06.2025. 4. The learned counsel appearing on behalf of the appellant submitted that all the directions except direction No.4 is the matter of concern, as it has taken away the relief, without considering the following procedure laid down in Annexure 4 notification dated 6.8.2018. V.c Stopping foetal heart beat: In cases of pregnancy over 24 weeks of gestation, an ultrasound gulded procedure may be required so that foetus is not expelled/delivered alive. This is a skilled procedure and must be performed by an experienced Obstetrician or Foetal Medicine expert only. The Royal College of Obstetricians and Gynaecologists (RCOG) recommends 2-3 ml of strong (15%) potassium chloride (KCI) injection in the foetal heart prior to termination. A repeat injection may be required if asystole has not occurred after 30-60 seconds. Asystole should be observed for at least two minutes and foetal demise should be confirmed by ultrasound scan after 30-60 minutes. This procedure whenever contemplated need be clearly mentioned in the recommendation or report of the Board to Hon'ble Court. 5. Considering this procedure, another co-ordinate bench of this Court vide judgment dated 12.3.2025 in W.A No.477 of 2025 had disposed of the writ petition in the following manner: (1) The Medical Board of Kalamassery Medical College shall examine Annexure 1, the Medical Board report dated 5.3.2025, and determine whether a substantial foetal abnormality exists. (2) If such an abnormality is found, a certificate shall be issued. On the basis of such certificate, the appellant is permitted to approach any hospital of her choice for iatrogenic foetal demise. (2) If such an abnormality is found, a certificate shall be issued. On the basis of such certificate, the appellant is permitted to approach any hospital of her choice for iatrogenic foetal demise. (3) There shall be a direction to the Superintendent of the above Medical College to constitute a Medical Board either today or by tomorrow. 6. The matter was again taken up by the bench and the following order was passed. We have already passed a judgment on 12.03.2025. The petitioner would submit that thereafter, the Medical Board constituted by the Government Medical College Hospital, Ernakulam expressed an opinion that “neurological status of the foetus cannot be commented on antenatally and can be completely determined only after birth of the baby.” 2. The appellant wants to have an assessment from Amrita Institute of Medical Sciences and Research Center, Edappally, Kochi. If that be so, we permit the Medical Board of Amrita Institute of Medical Sciences and Research Center to assess whether the foetus has any substantial abnormality as defined under Section 3 (2)-B of the Medical termination of Pregnancy Act, 1971 which is reproduced herewith; “(2-B) The provisions of sub-section (2) relating to the length of the 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.” 3. If the Medical Board finds any such substantial foetal abnormalities, we permit the appellant to terminate the pregnancy using any scientific method. This order is passed based on a submission made by the counsel for the appellant today morning. 7. Considering the predicament of the appellant-petitioner, we had on 2.7.2025 issued the notice to the counsel representing the Union of India as well as the State. 8. Mr.T.K Vipindas, learned Senior Government Pleader submitted that the Kalamassery Medical College does not have the facility of following the procedure as per the notification, ibid but submits that only the Amrita Medical College, Edapppaly would have the facility and the directions contained in the subsequent order in the writ appeal ie., 12.3.2025 can also be passed in the instant case for the purpose of vindication of the grievance of the petitioner, particularly in view of the medical reports Exts.P3 and P4. 9. We have heard the learned counsel for the parties and appraised the paper book. 10. 9. We have heard the learned counsel for the parties and appraised the paper book. 10. The directions contained in the order dated 12.3.2025 and subsequent order dated 14.3.2025 if read cumulative, we are of the view that the direction of the learned Single Bench is required to be modified and the present writ appeal is disposed of with the following directions: (1) The appellant would have an assessment from the Amrita Institute Medical Sciences and Research Center, Edapally, Kochi (2) The permission is granted to the Medical Board to assess whether the foetal has any substantial abnormalities as defined under Section 3 (2)-B of the Medical Termination of Pregnancy Act , 1971. (3) In case it finds that there are substantial abnormalities in the foetal, liberty is granted to the appellant to terminate the pregnancy using the scientific methods. The aforementioned order is passed on the basis of the submissions made by the counsel for the appellant as well. Writ appeal stands disposed of.