Cannot Take Away Freedom To Choose: Kerala High Court Allows Medical Termination Of 22 Weeks Old Pregnancy

The Kerala High Court recently ruled that the freedom of a pregnant woman to make a choice regarding the continuance of her pregnancy cannot be taken away. It thereby permitted the Petitioner with mild mental and physical disabilities to terminate her 22-week old pregnancy. 

Justice PB Suresh Kumar allowed such termination despite it having crossed the ceiling of 20-weeks as prescribed under the Medical Termination of Pregnancy Act, after examining a medical report evidencing that the mother has a mild mental disability and impaired adaptive skills, due to which "she might find it difficult to cope with the child-rearing demands of a baby with a disability".

Under the Act, termination of pregnancies is permitted only up to 20 weeks and pregnancies beyond that period can be terminated only if it is necessary to save the life of the pregnant woman.

The Single Bench made a significant observation as such:

"The freedom of a pregnant woman in making a choice as to whether the pregnancy should be continued cannot be taken away. Likewise, the right of the mother to terminate the pregnancy medically even after the permissible period in terms of the provisions of the Medical Termination of Pregnancy Act, has been recognised by the courts, if there is substantial risk that if the child were born, it would suffer from abnormalities as to be seriously handicapped."

A couple had approached the Court seeking directions to the respondents to allow the woman to terminate her pregnancy medically. It was alleged that since the outer time limit prescribed in the MTP Act for termination of the pregnancy is over, the respondents were refusing to terminate her pregnancy.

The petitioner urged the medical termination of the 22-week old foetus on the ground that continuance of the same would pose a risk to the mother's life and the baby would suffer from physical and mental abnormalities.

When the matter had come up before the Court on a previous occasion, it had directed the Permanent Medical Board of the Kottayam Medical College Hospital to examine the woman and submit a report regarding the potential risk to the woman and the child in terms of mental as well as physical health upon continuing with her pregnancy. 

In the report that was accordingly submitted, the Board disclosed that the foetus suffers from Klinefelter syndrome, a chromosomal anomaly associated with variable mental subnormality, endocrine problems, and psychological issues in later life. However, the Board also clarified that it is not a life-threatening disorder. 

Nevertheless, in the same report, the Board's neurology opinion revealed that the woman suffers from mild mental retardation, visual disturbances, seizures and weaknesses of the left lower limb with a permanent disability of 55%.

Therefore, for the said reasons, the Board had recommended medical termination of pregnancy in the case.

Similarly, although the abnormality detected in the foetus might not be life-threatening, the Court found that continuance of the pregnancy could lead to grave injuries to the woman physically and mentally. It was hence held as follows:

 "...if the said foetus disorder is analysed in the light of the provision contained in sub-Section(3) of Section 3 of the Medical Termination of Pregnancy Act, 1971, it can be seen that this is a case where it can be held that the continuance of the pregnancy of the petitioner would involve injury to the physical and mental health of the petitioner"

The petition was thereby allowed. 

Case Title: Karthika Sumesh & Anr. v. State of Kerala & Ors

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