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S. Akhil & Another v/s The State of Kerala, Represented by Secretary, Ministry of Health & Family Welfare, Thycaud & Others

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- S. O. HEALTH CORPORATION PRIVATE LIMITED [Active] CIN = U74999TG2017PTC119704

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

Company & Directors' Information:- V-FAMILY PRIVATE LIMITED [Active] CIN = U93090MP2020PTC051385

Company & Directors' Information:- WELFARE PVT LTD [Active] CIN = U74999WB1946PTC014414

Company & Directors' Information:- E-HEALTH INDIA PRIVATE LIMITED [Strike Off] CIN = U85110DL2001PTC113461

Company & Directors' Information:- HEALTH & WELFARE PVT LTD [Strike Off] CIN = U85110WB1954PTC021479

Company & Directors' Information:- THE WELFARE COMPANY LIMITED [Dissolved] CIN = U99999MH1929PTC001527

Company & Directors' Information:- FAMILY HEALTH INDIA [Active] CIN = U74120DL2008NPL175089

    WP(C). No. 19724 of 2020 (M)

    Decided On, 28 September 2020

    At, High Court of Kerala


    For the Petitioners: G.P. Shinod, Govind Padmanaabhan, Ajit G. Anjarlekar, Advocates. For the Respondents: B. Vinitha, G.P.

Judgment Text

1. The petitioners, who got married in March 2019, have filed this Writ Petition producing Ext.P2 health report dated 18.09.2020 from the SAT Hospital, Thiruvananthapuram, recommending termination of pregnancy of the 2nd petitioner, as the scan report showed “fetal near total agenesis of corpus collosum, vermian hypoplasia, with open fourth ventricle, severe bilateral ventriculomegaly causing severe cortical thinning”. As on 18.09.2020, the gestational age was found to be of 20 weeks and 6 days. They have therefore sought for a direction to the respondents to carry out termination of pregnancy of 2nd petitioner at the earliest.2. When the matter came up for admission on 25.09.2020 this Court passed an interim order directing the additional 4th respondent, the Superintendent of SAT Hospital to constitute a Medical Board and to examine the petitioner and report the matter through the learned Government Pleader.3. Smt. B. Vinitha, the learned Government Pleader made available the report. It is stated that the 2nd petitioner was examined on 26.09.2020 by a Medical Board, constituted with the following members:1. Dr.A.Santhosh Kumar, Superintendent, SATH, Govt. WP(C).No.19724 OF 2020 3 Medical College, Trivandrum.2. Dr.Nandini V R, Professor & Head, Department of O&G, SAT Hospital, Govt. Medical College,TVM.3. Dr. Mary Iype, Associate Professor & Head, Department of Pediatric Neurology, Govt. Medical College, TVM.4. Dr Veena, Assistant Professor, Department of Neonatology, Govt. Medical College, TVM.5. Dr.Lallchand A, Assistant Professor, Dept. of Psychiatry, Govt. Medical College, TVM.6. Dr.Sreekumari R, Professor, Department of O & G, SAT Hospital, Govt. Medical College, TVM.7. Dr.Sreelatha S, Associate Professor Department of O&G, SAT Hospital, Govt. Medical College, TVM.8. D .Saravanakumar TV, Associate Professor, Department of O&G, SAT Hospital,Govt. Medical College, TVM.9. Dr.Priyasree J, RMO, Gynaec, SAT Hospital, Govt. Medical College, TVM.4. The report of Medical Board reads as follows:“xxxx(name and address of 2nd petitioner) 22 weeks 1 day (as on 26-9-2020) was referred in view of anomaly scan showing fetal near total agenesis of corpus callosum, vermian hypoplasia with open fourth ventricle, severe bilateral ventriculomegaly causing severe cortical thinning - syndromic association not ruled out, poor prognosis”.Opinion of Medical board :1. Opinion of the pediatric neurologist - The prognosis regarding the mental and physical development of the child is poor, on evaluation of the antenatal scan report.2. Opinion of the psychiatrist - The grave abnormality detected in the fetus as per antenatal ultrasound carries potential harmful psychological consequences to the mother and child if the pregnancy were to continue.3. Opinion of the neonatologist - This congenital lethal anomaly is incompatible with life.4. Opinion of the gynaecologists - Considering the grave lethal anomaly of the fetus which will affected mental status of the mother, pregnancy may be terminated at the earliest even though it has crossed 20' weeks of gestational age. Considering the advanced gestational age, she carries the risk of surgical termination with anaesthetic risk if medical methods fail.”5. In view of the aforesaid opinion of the Medical Board, having detected grave abnormality in the fetus which has potential harmful psychological consequences to the mother and WP(C).No.19724 OF 2020 4 also to the child in the event of continuation of pregnancy and recommendation for termination of pregnancy at the earliest possible point of time, I deem it necessary to permit the petitioners to get the pregnancy of 2nd petitioner terminated.6. Even though Section 3(2) of the Medical Termination of Pregnancy Act, 1971 permits termination of pregnancy with a duration upto twelve weeks only, Section 5 permits the same when the Medical Board finds that the termination is necessary to save the life of the pregnant woman. Relevant portion of Section 5 reads as follows:“5. Sections 3 and 4 when not to apply.—(1) The provisions of Section 4, and so much of the provisions of subsection (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman”.Xxxx7. The apex court has in similar circumstances, in the judgment in Sarmishtha Chakrabortty v. Union of India: (2018) 13 SCC 339, permitted termination of pregnancy when the gestational age was 26 weeks, in view of the recommendation of the Medical Board and the medical report revealing the threat of severe mental injury to the woman and to the multiple complex problems to the child, if born alive, involving complex cardiac corrective surgery stage by stage after birth, in the event of continuation of the pregnancy. In Meera Santosh Pal v. Union of India: (2017) 3 SCC 462 also permission was granted when the WP(C).No.19724 OF 2020 5 pregnancy crossed 24 weeks, in view of the medical reports pointing out the risk involved. This court also in ABC V Union of India : 2020(2) KHC 526, permitted termination of pregnancy in order to save the life of the pregnant woman who was in physical as well as mental trauma. In view of the medical report furnished in the present case, I deem it necessary to permit termination of pregnancy of the 2nd petitioner.8. Therefore, having regard to the urgency involved in the matter, petitioners shall report before the additional 4th r

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espondent forthwith. There shall be a direction to the Superintendent of SAT Hospital, Thiruvananthapuram- the additional 4th respondent, to see that the termination of pregnancy of 2nd petitioner is carried out at the earliest point of time, if possible today itself, by competent doctors, under his supervision, in accordance with the provisions of the Medical Termination of Pregnancy Act,1971, its Rules and all other Rules, Regulations and Guidelines prescribed for the purpose. Learned Government Pleader shall communicate the directions in the judgment to the 4th respondent forthwith.Accordingly the Writ Petition is allowed.