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The Kerala High Court recently allowed the termination of a fetus on account of severe abnormalities at 24 weeks.

Relying on the report submitted by the medical board constituted in the present case, Kerala High Court allowed termination of pregnancy citing ‘severe abnormalities’

Justice P.V. Asha allowed Medical Termination of Pregnancy of a fetus of 24 weeks, deviating from the general rule as mentioned under Section 3 and 4 of the Medical Termination of Pregnancy Act, 1971. Reliance was placed over several settled precedents bearing similar facts.

Factual Matrix

The petitioner is a 21 year old woman seeking direction against the respondent authority to carry out medical termination of her pregnancy. The scan reports reflect severe abnormalities to the fetus, precisely, ‘fetal lips not seen instead Cystic swelling measuring 2.7 X 2.7 cm seen under nose and significant destruction of mandible anteriorly’. The gestation average age of the fetus was said to be around 24 weeks. Petitioner’s husband employed abroad held consensus on getting the pregnancy terminated.

What does the law say?

As per Section 3(2)(b)of the Medical Termination of Pregnancy Act 1971, termination of pregnancy is permissible where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than two registered medical practitioners are of opinion that:

(i) The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, OR

(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.

As per section 5 of the Medical Termination of Pregnancy Act, termination of pregnancy is permissible even in cases where the period of gestation exceeds the period prescribed in Section 3 and 4 of the Act, which reads as follows:

(1) The provisions of S.4 and so much of the provisions of subsection (2) of S.3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in 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.”

Precedents considered by the Court

1. Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339: Court permitted termination of pregnancy in this case, when the gestational age was over 26 weeks, considering recommendations of the medical board, revealing  threat of severe mental injury to the woman and multiple problems to the child, if born alive.
2. Meera Santosh Pal v. Union of India, (2017) 3 SCC 462: Court allowed termination of pregnancy over 24 weeks placing reliance on medical reports suggesting complex risks post birth.
3. ABC v. Union of India, 2020 (2) KHC 526: Kerala High Court permitted medical termination of pregnancy to save life of a woman suffering physical as well as mental trauma.
4. Neethu Narendran v. State of Kerala, 2020 (3) KHC 157: Termination of pregnancy allowed when gestational age was over 23 weeks.

 

Case Title: Alfiya Beevi v. State of Kerala | WP (C) No. 2869 of 2021

Provisions/Statute involved: Section 3, 4 and 5 Medical Termination of Pregnancy Act, 1971

Access Copy of Judgment Here