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Synopsis

The Kerala High Court has permitted the medical termination of a 32-week pregnancy where the foetus was diagnosed with severe neurological abnormalities.

A Single judge bench comprising Justice C.S. Dias, while allowing the petition in part, declined permission for iatrogenic foetal demise through an intracardiac injection. Relying on Indulekha Sreejith v. Union of India and Others (2021), the court noted that “an unborn child possesses a fundamental right to life under Article 21 of the Constitution of India.”

The petitioner, in her 31st week of pregnancy with her second child, sought permission from the High Court to terminate her pregnancy after a February 2025 ultrasound revealed severe foetal abnormalities despite earlier scans indicating normal development. Subsequent medical evaluations confirmed the absence of two critical brain structures—cavum septum pellucidum and corpus callosum—indicating incomplete brain development. The Medical Board opined that if the child were born, it would suffer from significant mental and physical disabilities. The petitioner argued that the pregnancy had become a source of immense physical and mental distress and requested termination at a super-speciality hospital of her choice with an intracardiac injection to effectively end the life of the foetus and prevent live birth.

The four member Medical Board report confirmed the likelihood of neurological defects and acknowledged the medical risks associated with a late-stage caesarean termination. However, the report also noted that, given the gestation period, there was a possibility of the baby being delivered alive.

The court took note of the Medical Termination of Pregnancy Act, 1971, particularly Section 3(2B), which allows termination beyond statutory gestational limits in cases of substantial foetal abnormalities certified by a medical board.

The court also considered precedents established in by the Supreme Court in cases including Suchita Srivastava v. Chandigarh Admn. (2009), affirming reproductive rights under Article 21 of the Constitution, and XYZ v. State of Gujarat (2023), which ruled that “the Medical Board or the High Court cannot refuse termination of pregnancy merely on the ground that the gestational age is above the statutory prescription.”

Consequently, the court allowed the petitioner’s plea stating that “there is a decisive basis to hold that the petitioner is eligible to get her pregnancy terminated, irrespective of the gestation age, in view of Section 3 (2-B) of the Act, as the foetus presents with substantial abnormalities that the Medical Board has confirmed.”

However, the court agreed with the Medical Board’s opinion is that there is a likelihood of the baby being born alive and that the unborn child also has the right to life. In furtherance, the court refused permission for intracardiac foetal demise.

The court also specified that the procedure must be conducted in a government hospital and not at a super speciality hospital, as requested by the petitioner.

Additionally, the court directed that if the child is born alive and the parents do not wish to keep it, they must surrender the child to childcare institution or a specialised adoption agency under the Juvenile Justice (Care and Protection of Children) Act, 2015. The court also directed the petitioner and her husband to take full responsibility and bear the expenses for the baby till it is surrendered.

 

Cause Title: XXX v Union of India [WP(C) NO. 8514 OF 2025]

Appearance: For the Petitioner- Advocates George Varghese (Perumpallikuttiyil), Manu Srinath, Lijo John Thampy, Nivedita Muchilote, and Riyas M.B.;  For the Respondents- Deputy Solicitor General of India T.C. K