Kerala High Court Dismisses Couple's Plea To Abort 35 Weeks Pregnancy Due To Serious Abnormalities In Foetus

Observing that "the stage at which permission can be granted has crossed the limits", the bench of Justice P. V. Asha passed the order based on the opinion of the Medical Board that there was every possibility that the child would be born alive.

Petitioners' plea

Pointing out serious abnormalities in the foetus, the Petitioners (husband and wife) approached the Court seeking permission for carrying out medical termination of pregnancy at a gestational age of 34 weeks.

Thereafter, on the direction of the Court a medical board was constituted to examine the lady and to report before the Court, her medical condition as well as of the foetus.

It was argued by the petitioners that under Article 21 of the Constitution of India, the lady was having every right to decide on the question of continuance of her pregnancy, which is a right to live with human dignity also and hence she has to be permitted to undergo medical termination of pregnancy.

It was also stated that the petitioners are willing to take the risk on account of the same.

The Opinion by the Medical Board

Even though the Medical Board concluded that the foetus is having serious developmental brain anomalies, it also found the possibility of survival of baby at birth and that there are chances of excessive bleeding during delivery.

However, there was no recommendation for termination of pregnancy.

Arguments put forth by the State

The Government Pleader pointed out that even if there is a normal delivery, the Child Welfare Committee would be ready to take care of the child and that at the instant stage permission for medical termination would affect the right to life of the child in the womb.

She also pointed out that nobody has a right to commit suicide and a foeticide "cannot be permitted at this stage when its growth is almost complete."

It was also pointed out that there was a risk for the life of both the foetus as well as the mother.

It was argued that even as per the MTP Amendment Bill 2020, termination is permissible only up to 24 weeks and there is no proposal for its permission irrespective of the gestational age.

Court's observations

The Court, in its order, remarked,

"Though the counsel for the petitioners pointed out that the petitioners are willing to take a risk, in none of the judgments relied on by the Counsel, the gestational age had exceeded 32 weeks."

Noting that "only some more days are left for the full development of the foetus", the Court dismissed the Writ Petition filed by the married Couple.

Medical Termination of Pregnancy Act, 1971

It is pertinent to note that the limit for medical termination of pregnancy, as per Section 3 of the Medical Termination of Pregnancy Act, 1971, is 20 weeks.

The only two exceptions provided therein are if the medical practitioners are of the opinion that (i) continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; and (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Further, the explanations appended thereto provide that:

• Where pregnancy is caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman
• Where any pregnancy occurs as a result of a failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Significantly, the Calcutta High Court in Suparna Debnath v State of West Bengal, held that Section 3 of the Medical Termination of Pregnancy Act 1971 will include a case where there is a congenital defect which would not be conducive to the healthy life of a child if carried to term.

As stated, Section 3 of the Act places an absolute bar for terminating the pregnancy beyond 20 weeks, however, the Division Bench had held that this bar was not applicable in cases where it was proven that the child will be born with inherent health defects.

In the instant, the Bench of Justice P. V. Asha also noted that she had already dismissed W.P.(C).No.18610/2020 where gestational age was 31 weeks.

Case title - Akhila Kurian Alias Akhila Ann Baby and another v. The UOI and others [WP(C).No.27842 OF 2020(E)]

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