Kerala High Court
Syeda Shazia Talath vs Union Of India, Rep. By Its Secretary on 24 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WP(C) NO. 22789 OF 2025
PETITIONERS :-
1 SYEDA SHAZIA TALATH, AGED 31 YEARS
W/O. JIBIN THOMAS, FLAT NO : 5A, 5TH FLOOR, SAVITHA
RD, ARAKKAKADAVU, VENNALA, ERNAKULAM., PIN - 682028
2 JIBIN THOMAS, AGED 32 YEARS
S/O. THOMAS, RESIDING AT FLAT NO : 5A, 5TH FLOOR,
SAVITHA RD, ARAKKAKADAVU, VENNALA,
ERNAKULAM, PIN - 682028
BY ADVS.
SHRI.P.T.MOHANKUMAR
SHRI. RAM MOHAN
SHRI.GEORGE CHERIAN (K/560/1990)
SHRI.RAJESH CHERIAN KARIPPAPARAMBIL
RESPONDENTS :-
1 UNION OF INDIA, REP. BY ITS SECRETARY,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT BHAVAN,
NEW DELHI, PIN - 110001
2 STATE OF KERALA, REPRESENTED BY THE SECRETARY
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE DISTRICT MEDICAL OFFICER,
OFFICE OF THETHE DISTRICT MEDICAL OFFICER,
ERNAKULAM, PIN - 682011
4 THE SUPERINTENDENT,
GOVT. MEDICAL COLLEGE, HMT ROAD, HMT COLONY,
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NORTH KALAMASSERY, ERNAKULAM, PIN - 683503
5 DR. SHEMINI SALEEM
CONSULTANT, DEPARTMENT OF OBSTETRICS & GYNAECOLOGY,
SUNRISE HOSPITAL, SEAPORT-AIRPORT ROAD,
KAKKANAD, KOCHI, PIN - 682030
BY ADV SRI.RAHUL VENUGOPAL
SMT. K B SONY -GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioners are wife and husband respectively. The 1st
petitioner seeking medical termination of 28 weeks plus four days
old pregnancy, after having found that the foetus is having a loss
of 1.6 Mb on chromosome X at the p22.31 region, which cause
developmental delays, intellectual disability, physical
abnormalities like heart defects, facial dysmorphism and skeletal
anomalies besides behavioral issues. On 25.05.2025, antenatal
fetal assessment done at Sunrise Hospital, Kakkanad confirmed
the above findings. The petitioners, therefore, seek for a direction
to the respondents to permit the 1st petitioner to undergo medical
termination of pregnancy.
2. Heard the learned counsel for the petitioners, the
learned DSGI and the learned Government Pleader.
3. When the writ petition came up for consideration on 20 th
June, 2025, this Court directed the third respondent to constitute
a Medical Board for the purpose of assessing the following:-
(i) whether continuance of the 1st petitioner’s
pregnancy would involve risk to her life or grave injury
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to her physical or mental health,
(ii) whether there is a substantial risk that if the child
was born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped and if so,
the nature of abnormalities and
(iii) whether, having regard to the advanced stage of
pregnancy, there is any danger (other than usual
danger which arises even in spontaneous delivery at the
end of full term) if the pregnant mother is permitted to
terminate her pregnancy.
On 24.06.2025, the learned Government Pleader made
available this Court the report of the Medical Board dated
24.06.2025 comprising of HOD of OBG department, Additional
professor of Paediatrics Department, Associate Professor of
Radiology Department, Assistant of Psychiatry Department of
the Government Medical College Hospital, Ernakulam. The
opinion of the Medical Board are as follows:-
1. Opinion of Dr.Rajeswary Pillay, HOD OBG Department,
GMCH, EKMRероrt prepared from history records and scan findings, opinion of Fetal
Medicine Expert, Dr.Sheela Nampoothiri, Professor & HOD, Amrita Institute
of Medical Sciences read through in detail.
The period of gestation is 28 weeks + 4 days on 23/06/2025
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Amniocentesis Test reveals 1.6 mb detentions : loss of 7 genes, likely
to produce some fetal problems later. The report says the patient also has
psychological stress and wishes termination.
I have counselled and spoken to the couple Mr.Jibin Thomas and Mrs.
Syeda Shazia Talath. They wish to continue with MTP. As gestation has
crossed the period of viability, there is a high possibility of a live baby, the
process of MTP will be prolonged as the uterus is not ripe for delivery.
She may require multiple repeated doses of oral and vaginal drugs anda
foley catheter procedure may take a few days – weeks for action. There is a
chance of infection, hemorrhage, premature rupture of membranes, need
for anaesthesia and major surgery (Caesarean). If medical methods fail,
there may be a need for blood transfusion, anaesthesia risks; this can
affect future pregnancies in some cases.
The baby may be born alive and may require prolonged ICU
management of prematurity also – this has been discussed with couple by
Paediatrician in Medical Board – Dr.Sunil Daniel.
2. Opinion of Dr. Juliet, R. John, Associate Professor, Radiology
Department, GMCH. Ekm
History and scan findings were noted. Mrs. Syeda Shazia Talath, 30
years with 28 weeks 4 days gestation according to LMP. Antenatal scans
were done during her pregnancy at Sunrise Hospital, Kochi Dating scans
done on 17/01/2025 & 01/02/2025 showed subserosal fibroid/broad
ligament fibroid complicating pregnancy.
NT Scan done on 08/03/2025 was normal. Anomaly scan done on
27/04/2025 showed single live fetus of 20 weeks with echogenic
intracardiac focus in right ventricle and intermittent talipes positioning of
right foot. Follow up scan done on 25/05/2025 showed Talipes equinovarus
of left ankle joint and echogenic intracardiac focus in right ventricle.
Obstetric scan done on 19/06/2025 showed CTEV in both lower limbs &
echogenic intracardiac foci in both ventricles. Fetal echo was not done. The
Fetal medicine Specialist at Sunrise Hospital suggested Amniocentesis
following the scans.
3. Opinion of Dr. Deenu Chacko. Assistant Professor. Psychiatry
Department, GMCH, Ekm
History noted from Mrs.Syeda Shazia Talath and Mr. Jithin Thomas.
They give a past history of mild psychiatric illness and treatment for
Mrs. Syeda. The current mental status examination of Mrs.Syeda reveals
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that she is anxious which is a normal psychological reaction to the current
stressor.
4. Opinion, Dr.Sunil Danish Additional Professor. Paediatrics
Department, GMCH.Ekm
History and antenatal scans, genetic testing findings of Syed Sharis Talath
has been examined Fetal Scans done on 19/06/2025 showed apparent
CTEV on both lower limbs and both lower limbs visualized normal. An
echogenic intracardiac foci in both ventricles is detected. CTEV is a
condition which can be corrected postnatally and echogenic intracardiac foci
is a normal variant seen in fetuses. Genetic testing chromosomal microarray
showed up 22.31 microdeletion, which is suggestive of x linked recessive
ichthyosis developmental delay, ADHD & corneal opacities. It is a condition
that manifests in males and females becoming carriers. Since no lethal
abnormalities are detected in fetal scans and genetic testing, the baby is
likely to be born alive, if terminated prematurely with all the complications of
prematurity.
As there is a possibility of fetal cardiac anomaly, fetal echocardiography
may be done and parental microarray to detect origin of this deletion is also
recommended.
If the baby is born alive, it needs to be given basic life support. The
family should give written consent that they are willing to take care of the
baby if it survives. The Family can also give an advanced care plan.
In the advanced care plan, they can provide the written consent for
withholding from the ventilator if the baby develops any complication
endangering life. In such a situation, they can opt for “End of Life Care ”
which is very well accepted by the World Health Organisation.
However court direction is needed for implementing End of Life Care
for this baby as there is no existing Law for the same in India at present. All
the above details have been explained in detail to both the parents.
All relevant matters have been discussed.
Final Opinion
The termination of pregnancy may be done if the patient is willing to
accept the risks of the fetus and mother as explained in detail above.
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4. The termination of pregnancy is governed by the Medical
Termination of Pregnancy Act, 1971 (‘Act’, in short) and the
rules framed thereunder. The Act is a progressive legislation
that regulates how pregnancies can be terminated.
5. Section 3 of the Act spells out the conditions to be satisfied
to terminate a pregnancy, which reads as follows:
“S.3 – When pregnancies may be terminated by registered
medical practitioners.–
(1) Notwithstanding anything contained in the Indian Penal
Code (45 of 1860), a registered medical practitioner shall not
be guilty of any offence under that code or under any other
law for the time being in force, if any pregnancy is
terminated by him in accordance with the provisions of this
Act.
(2) Subject to the provisions of sub-section (4), a pregnancy
may be terminated by a registered medical practitioner, ―
(a) where the length of the pregnancy does not exceed
twenty weeks, if such medical practitioner, is or (b) where
the length of the pregnancy exceeds twenty weeks but
does not exceed twenty – four weeks in case of such
category of woman as may be prescribed by rules made
under this Act, if not less than two registered medical
practitioners are, of the opinion, formed in good faith,
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 any serious physical or mental abnormality.
Explanation 1.―For the purposes of clause (a), where any
pregnancy occurs as a result of failure of any device or
method used by any woman or her partner for the purpose
of limiting the number of children or preventing pregnancy,
the anguish caused by such pregnancy may be presumed to
constitute a grave injury to the mental health of the
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pregnant woman.
Explanation 2. ― For the purposes of clauses (a) and (b),
where any pregnancy is alleged by the pregnant woman to
have been caused by rape, the anguish caused by the
pregnancy shall be presumed to constitute a grave injury to
the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner whose
opinion is required for termination of pregnancy at different
gestational age shall be such as may be prescribed by rules
made under this Act.
(2B) The provisions of sub-section (2) relating to the length of
the pregnancy shall 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.
(2C) Every State Government or Union territory, as the case
may be, shall, by notification in the Official Gazette, constitute
a Board to be called a Medical Board for the purposes of this
Act to exercise such powers and functions as may be
prescribed by rules made under this Act.
(2D) The Medical Board shall consist of the following, namely:
(a) a Gynaecologist; (b) a Paediatrician; ― (c) a Radiologist or
Sonologist; and (d) such other number of members as may be
notified in the Official Gazette by the State Government or
Union territory, as the case may be.
(3) In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is mentioned
in sub-section (2), account may be taken of the pregnant
woman’s actual or reasonably foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of
eighteen years, or, who having attained the age of eighteen
years, is a mentally ill person, shall be terminated except with
the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall
be terminated except with the consent of the pregnant woman.”
6. It is also necessary to refer to the Medical Termination of
Pregnancy Rules, 2003, which reads as follows:
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“3A. Powers and functions of Medical Board.–For the
purposes of section 3,– (a) the powers of the Medical
Board shall be the following, namely:- (i) to allow or deny
termination of pregnancy beyond twenty-four weeks of
gestation period under sub-section (2B) of the said section
only after due consideration and ensuring that the
procedure would be safe for the woman at that gestation
age and whether the foetal malformation has substantial
risk of it being incompatible with life or if the child is born
it may suffer from such physical or mental abnormalities
to be seriously handicapped”;
7. The position of law can therefore be summarised thus:
8. Besides the above statutory safeguards, the Ministry of
Health and Family Welfare, Government of India, has issued a
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comprehensive ‘Guidance Note for Medical Boards for Termination
of Pregnancy beyond 20 weeks of Gestation’, dated 14th August
2017. The Note stipulates that it is the responsibility of the Medical
Board to ascertain whether the fetal abnormality is substantial
enough to qualify as either incompatible with life or associated with
significant morbidity or mortality of the child if born. Determining
substantial fetal abnormalities should be based on a thorough
review of the patient’s medical records. The Medical Board should
conduct additional investigations as may be necessary. It should
base its decision on concrete medical evidence and expert
evaluations, including reviewing the available documents and
performing additional diagnostic tests to confirm the presence and
extent of congenital abnormalities. The objective of the Note is to
ensure that the decision to terminate the pregnancy is made with
the utmost care and consideration of the potential outcomes and
quality of life of the child.
9. A three-judge Bench of the Hon’ble Supreme Court, in
Suchita Srivastava v. Chandigarh Admn. [(2009) 9 SCC 1], has
held that the right to make reproductive choices is a facet of
Article 21 of the Constitution and that the consent of the pregnant
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person in matters of reproductive choices and abortion is
paramount.
10. In XYZ v. State of Gujarat (2023 SCC Online SC 1573),
the Hon’ble Supreme Court held 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. It is held as follows:
“19. The whole object of preferring a Writ Petition under
Article 226 of the Constitution of India is to engage with
the extraordinary discretionary jurisdiction of the High
Court in exercise of its constitutional power. Such a
power is vested with the constitutional courts and
discretion has to be exercised judiciously and having
regard to the facts of the case and by taking into
consideration the relevant facts while leaving out
irrelevant considerations and not vice versa.”
11. The Hon’ble Supreme Court in A v. State of Maharashtra
[(2024) 6 SCC 327] has held as under:
” 28. The powers vested under the Constitution in the High
Court and this Court allow them to enforce fundamental rights
guaranteed under Part III of the Constitution. When a person
approaches the court for permission to terminate a pregnancy,
the courts apply their mind to the case and make a decision to
protect the physical and mental health of the pregnant person.
In doing so the court relies on the opinion of the Medical Board
constituted under the MTP Act for their medical expertise. The
court would thereafter apply their judicial mind to the opinion of
the Medical Board. Therefore, the Medical Board cannot merely
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state that the grounds under Section 3(2-B) of the MTP Act are
not met. The exercise of the jurisdiction of the courts would be
affected if they did not have the advantage of the medical
opinion of the board as to the risk involved to the physical and
mental health of the pregnant person. Therefore, a Medical
Board must examine the pregnant person and opine on the
aspect of the risk to their physical and mental health.
29. The MTP Act has removed the restriction on the length
of the pregnancy for termination in only two instances. Section
5 of the MTP Act prescribes that a pregnancy may be
terminated, regardless of the gestational age, if the medical
practitioner is of the opinion formed in good faith that the
termination is immediately necessary to save the life of the
pregnant person. Section 3(2-B) of the Act stipulates that no
limit shall apply on the length of the pregnancy for terminating
a foetus with substantial abnormalities. The legislation has
made a value judgment in Section 3(2-B) of the Act, that a
substantially abnormal foetus would be more injurious to the
mental and physical health of a woman than any other
circumstance. In this case, the circumstance against which the
provision is comparable is rape of a minor. To deny the same
enabling provision of the law would appear prima facie
unreasonable and arbitrary. The value judgment of the
legislation does not appear to be based on scientific parameters
but rather on a notion that a substantially abnormal foetus will
inflict the most aggravated form of injury to the pregnant
person……..
xxxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxxx
32. This highlights the need for giving primacy to the
fundamental rights to reproductive autonomy, dignity and
privacy of the pregnant person by the Medical Board and the
courts. The delays caused by a change in the opinion of the
Medical Board or the procedures of the court must not frustrate
the fundamental rights of pregnant people. We therefore hold
that the Medical Board evaluating a pregnant person with a
gestational age above twenty-four weeks must opine on the
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physical and mental health of the person by furnishing full
details to the court”.
12. As far as the present case is concerned, Exts.P3 and
P4, together with Medical Board reports, it is clear that there
exists considerable reason that the baby will be born with
Down’s syndrome if born alive. Further the Medical Board has
opined that if the pregnancy continues and a baby is born, it
would suffer from Down’s Syndrome and serious cardiac
abnormalities which may require surgery and follow up
treatment. The Medical Board has opined that the option of
second trimester MTP can be given to the mother in view of
confirmed Down’s Syndrome of foetus with associated
anomalies, after proper counselling of the couple regarding the
complications associated with 2nd trimester MTP to mother and
baby, if they are willing to accept consequences and after
informed consent.
13. Consequently, there is a decisive basis to hold that the
1st 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.
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14. Learned counsel for the petitioner submits that if the
baby is born alive, the parents are ready and willing to bear the
risk of taking care of the patient and baby and also ready to
meet all the expenses.
15. After an elaborate consideration of the facts, the
materials on record and the well-settled principles of law on the
subject, especially considering the recommendations of the
Medical Board, I am of the view that denying termination may
only delay the inevitable and extend the suffering of the family.
The writ petition is to be disposed of by directing the fourth
respondent to terminate the petitioner’s pregnancy.
In the aforementioned circumstances, I dispose of the writ
petition by passing the following directions:
1. The fourth respondent shall take immediate measures for
constituting a Medical Team to conduct the termination of
the petitioner’s pregnancy, on production of a copy of this
judgment.
2. The Medical Team shall, in their discretion and best
judgment, adopt the best procedure recommended in the
medical science to terminate the pregnancy and save the
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life of the 1st petitioner.
3. The petitioner shall file an undertaking authorising the
fourth respondent to terminate the pregnancy at their risk
and costs.
4. If the foetus is born alive, the hospital shall render all the
necessary assistance, including incubation and treatment
at any super-speciality, to ensure that the foetus survives.
The baby shall be offered the best medical treatment, and
the petitioners shall take full responsibility and bear the
expenses for the baby.
5. Before conducting the termination of the pregnancy, the
Medical Board shall reconfirm the fetal abnormalities by
performing a final scan.
6. The party shall appear before the Superintendent of
Medical College Hospital, Kalamassery on 26.06.2025.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
SMA
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APPENDIX OF WP(C) 22789/2025
PETITIONER EXHIBITS :-
Exhibit P-1 TRUE COPY OF THE REPORT CONTAINING THE
SCAN FINDINGS RECORDED BY THE DEPARTMENT
OF RADIOLOGY OF SUNRISE HOSPITAL, DATED
25-05-2025
Exhibit P-2 TRUE COPY OF THE TEST RESULT, INDICATING
THE CLINICAL FINDINGS, ISSUED FROM LILAC
INSIGHTS LAB, NAVI MUMBAI,DATED 11-06-2025
Exhibit P-3 TRUE COPY OF THE LETTER SENT BY RESPONDENT
NO.5 SEEKING MEDICAL OPINION OF DR. SHEELA
NAMPOOTHIRI, CLINICAL PROFESSOR AND HEAD
OF THE DEPARTMENT OF THE DEPARTMENT OF
PAEDIATRIC GENETICS, AMRITA INSTITUTE OF
MEDICAL SCIENCES & RESEARCH CENTRE, DATED
16-06-2025
Exhibit P-4 TRUE COPY OF THE LETTER OF MEDICAL OPINION
SENT BY DR. SHEELA NAMPOOTHIRI, DATED 17-
06-2025
Exhibit P-5 TRUE COPY OF THE MEDICAL OPINION OF THE
CONSULTANT PSYCHIATRIST AT ‘METRO
MIND CENTRE FOR NEURO PSYCHIATRY, DATED
18-06-2025
Exhibit P-6 TRUE COPY OF THE MEDICAL OPINION OF
RESPONDENT NO.5 POINTING OUT THE NECESSITY
OF MEDICAL TERMINATION OF PREGNANCY OF
PETITIONER NO.1, DATED 18-06-2025