Kerala High Court Permits Termination Of 27 Weeks Pregnancy Citing Foetal Abnormalities But Says Parents Will Be Responsible If Child Born Alive

Justice Kauser Edappagath relying upon the report of the Medical Board observed that even though the foetus does not have a life-threatening condition, it has multiple major congenital abnormalities to the brain and spinal cord, indicating a high risk of neurodevelopment impairment, health complications and mortality.

“It is further opined that even though this is not a life-threatening condition, the child is likely to have permanent and significant neurological disabilities and handicaps. Hence, the Board recommended termination of pregnancy. It is a case squarely falling within the exception carved out by clause (2B) to sub-section (2) of Section 3 inasmuch as the Medical Board diagnosed substantial abnormalities in the foetus.”

The petitioners contended that they found substantial deformities and abnormalities on the head, spine and face of the foetus. The hospital authorities stated that medical termination of pregnancy could be done only after getting orders from the Court since the gestational age of the foetus was 25 weeks.

The Court noted that the Medical Termination of Pregnancy Act, 1971 was enacted to legalize abortions in some predetermined situations by medical professionals. It stated that the MTP Act was amended in 2021 to allow abortions up to 24 weeks of gestation from the previous 20 weeks- for certain categories of women that include survivors of rape, incest, minors, women experiencing a change of marital status (widowhood or divorce), women with disabilities, women with foetal anomaly etc.

The Court stated that the exception provided by Clause 2B of Section 3 (2) of the Act permits termination of pregnancies beyond 24 weeks in cases of foetal anomalies of the child if a duly constituted Medical Board certifies that there are substantial foetal abnormalities.

Relying upon the Apex Court decisions in K.S.Puttaswamy v. Union of India (2017), Suchita Srivastava v. Chandigarh Administration (2009), X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022), the Court stated that reproductive autonomy is an integral part of the right to personal liberty and privacy under Article 21 of the Constitution. In XYZ v State of Gujarat (2023), the Apex Court ruled that a woman alone has the right over her body and she is the ultimate decision maker on abortion.

In the facts of the case, the Court constituted a Medical Board consisting of seven doctors that examined the petitioner and the foetus. The Court observed that the child could develop significant and permanent foetal anomalies. It thus permitted the petitioner to undergo medical termination of pregnancy.

However, the Court ruled that since the petitioners are a married couple who opted for a voluntary pregnancy and the foetus in its 27^th week of gestation, they cannot evade from their responsibility if the child is born alive. It added,

“If the foetus is found to be alive at birth, the hospital shall give all necessary assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives. Further, the baby is to be offered the best medical treatment available so that it develops into a healthy child. The petitioners shall take full responsibility of the baby, offer best medical treatment and rear the child in its best interest.”

Accordingly, the Court disposed of the petition allowing medical termination of pregnancy.

Counsel for Petitioner: Advocates Sidharth O, Susanth Shaji, Albin A Joseph

Counsel for Respondents: Senior Government Pleader Deepa Narayanan, Senior Panel Counsel T C Krishna

Citation: 2024 LiveLaw Ker 283

Case Title: XXX v Union of India

Case Number: WP(C) No.16583/2024

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