Length Of Pregnancy No Bar For Termination If Medical Board Opines That Substantial Fetal Abnormality Exists: Kerala High Court Allows Iatrogenic Foetal Demise
The Kerala High Court modified the impugned Judgment of the Single Bench declined the Appellant’s prayer on the grounds that the gestation period had progressed beyond 32 weeks.
The Kerala High Court has allowed for the iatrogenic foetal demise of the fetus while remarking that the length of pregnancy is not a matter for termination if the Medical Board opines that a substantial fetal abnormality exists.
The Court modified the impugned Judgment of the Single Bench, while directing the Medical Board of Kalamassery Medical College to examine the medical report of the Appellant and determine the existence of a substantial foetal abnormality.
The Single Bench had declined the Appellant’s prayer for iatrogenic foetal demise on the grounds that the gestation period had progressed beyond 32 weeks. The Single Bench also considered the Medical Board’s opinion that there is a likelihood of the baby being born alive and that the unborn child also has the right to life.
A Division Bench of Justice A Muhamed Mustaque and Justice P Krishna Kumar held, “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. The appellant shall be permitted to undergo iatrogenic foetal demise of the fetus.”
Advocate George Varghese (Perumpallikuttiyil) appeared for the Appellant, while DSGI TC Krishna represented the Respondents.
Brief Facts
The Appeal was filed against the judgment of the Single Bench, where the Appellant sought permission to undergo iatrogenic foetal demise of the fetus due to a substantial foetal abnormality as per the Medical Board.
However, the Single Bench held, “I decline permission for the termination of life through an intracardiac injection. Should the petitioner and her husband remain unwilling to take care of the infant, if it is born alive, they shall surrender the baby to a childcare institution or a specialised adoption agency, as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.”
Court’s Reasoning
The Medical Board had initially opined that there is a substantial risk that the baby is likely to have neurological abnormalities if born alive. The Court noted Section 3(2)-B) of the Medical Termination of Pregnancy Act, 1971 (the Act) which states that the length of pregnancy does 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.
The Court ordered the Medical Board of Kalamassery Medical College to examine the Medical Board report and determine whether a substantial foetal abnormality exists. If such an abnormality is found, a certificate shall be issued.
Consequently, the Court directed the Medical Board to “determine whether a substantial foetal abnormality exists…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. (3) There shall be a direction to the Superintendent of the above Medical College to constitute a Medical Board either today or by tomorrow.”
Accordingly, the High Court modified the impugned Judgment.
Cause Title: XXX v. Union Of India & Ors. (Neutral Citation: 2025:KER:20965)
Appearance:
Appellant: Advocates George Varghese (Perumpallikuttiyil), Lijo John Thampy, Manu Srinath, Nivedita Muchilote and Riyas M.B.
Respondents: DSGI TC Krishna; GP Sunilkumar Kuriakose
