Gestation Period Not Relevant For Termination Of Pregnancy If Medical Board Opines That There Exists Substantial Foetal Abnormality: Kerala HC
The Kerala High Court recently held that length of pregnancy is not a relevant consideration for permitting termination of pregnancy when the Medical Board opines that there is a substantial foetal abnormality.
The Division Bench of Justice A.Muhamed Mustaque and Justice P. Krishna Kumar thus permitted appellant-mother to carry medical termination of pregnancy, where the gestation period had progressed beyond 32 weeks, as per Section 3 (2)-B) of the Medical termination of Pregnancy Act on finding of substantial foetal abnormality.
“The length of pregnancy is not a matter for termination if the Medical Board opines that a substantial fetal abnormality exists. The appellant has a prayer that, there exists substantial foetal abnormality… 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.”
In the facts of the case, the appellant had approached the High Court in her 31st week of pregnancy. The single judge had dismissed the writ petition stating that there is a likelihood that the baby would be born alive since gestation period has progressed 32 weeks. Aggrieved by the order in the writ petition, the appeal was preferred.
The appellant who conceived in July 2024 submitted that the foetus was normal until February 2025. It was submitted that foetus abnormality was detected only in the ultrasound report dated February 10, 2025.
The appellant submitted that the brain of the foetus was not fully developed and that the foetus would be born with severe mental and physical disabilities. It was submitted that continuing pregnancy was causing immense mental and physical distress to the appellant mother. It was also submitted that the birth of a child with severe abnormalities would be a challenge for the child and the appellant's family.
The Court noted that report of the Medical Board also stated that the baby will likely have neurological abnormalities if born alive.
As per Section 3 (2) (a) of the Medical termination of Pregnancy Act of 1971, medical termination of pregnancy is permitted if gestation period does not exceed twenty weeks. Additionally, under Section 3(2)(b), pregnancy between 20 to 24 weeks may be terminated if two registered medical practitioners are of the opinion that continuing the pregnancy would pose a risk to the life of the pregnant woman, cause grave injury to her physical or mental health, or if there is a substantial risk that the child, if born, would suffer from a serious physical or mental abnormality.
The Division Bench referred to Section 3 (2)-B) which reads thus: “(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.”
As such, the Court directed the Medical Board to examine the medical report to assess whether substantial foetal abnormality exists. It thus permitted the appellant to conduct iatrogenic foetal demise on certification of such foetal abnormality.
Counsel for Appellant: Advocates George Varghese(Perumpallikuttiyil), Lijo John Thampy, Manu Srinath, Nivedita Muchilote, Riyas M.B.
Counsel for Respondents: DSGI T C Krishna, Government Pleader Sunilkumar Kuriakose
Case Title: XXX v Union of India
Case No: WA No. 477 OF 2025
Citation: 2025 LiveLaw (Ker) 181