“The gestational age had exceeded 32 weeks. Now, it is a question of only some more days left for the full development of the foetus. Therefore, I am of the view that the stage at which permission can be granted has crossed the limits,” the Kerala High Court made this observation on Wednesday while dismissing a petition filed by a man and his wife who have approached the High Court seeking permission for carrying out medical termination of pregnancy at a gestational age of 34 weeks.
The Single Bench of Justice P. V. Asha passed this order while considering that the Medical Board has come to the conclusion that the foetus is having serious developmental brain anomalies, it has found the possibility of survival of baby at birth and that there are chances of excessive bleeding during delivery. There is no recommendation for termination of pregnancy.
When the Writ Petition came up for consideration on 14.12.2020 this Court directed the Superintendent, Government Medical College Kottayam, Gandhi Nagar to convene a medical board in order to examine the woman (1st petitioner) and to report before this Court the medical condition of the woman as well as the foetus.
Isaac Thomas, counsel for the petitioners, relying on the judgments of the Division Bench of the Calcutta High Court reported in Suparna Debnath and another vs. State of West Bengal and others: 2019 KHC 2644, judgment of this Court in Neethu Narendran and another vs. State of Kerala and others : 2020 (3) WP(C).No.27842 OF 2020(E) KHC 157, the judgment dated 14.10.2019 in WP(C) No.26890/2019 and the judgment of the Division Bench of the High Court of Bombay in WP(L) No.4491/2020 dated 22.10.2020, argued that under Article 21 of the Indian Constitution, the first petitioner has every right to decide on the question of continuance of her pregnancy, which is a right to live with human dignity also and hence she has to be permitted to undergo medical termination of pregnancy. It is also stated that the petitioners are willing to take the risk on account of the same.
On the other hand, the Government Pleader B. Vinitha, argued that when the pregnancy has reached the stage of 35 weeks, there is every possibility that the child will be born alive as pointed out by the medical board. It is pointed out that even if there is a normal delivery, the Child Welfare Committee would be ready to take care of the child and at this stage permission for medical termination would affect the right to life of the child in the womb.
She further submitted that nobody has a right to commit suicide and a foeticide cannot be permitted at this stage when its growth is almost complete. It is also pointed out that there is risk for the life of both the foetus as well as the mother. It is argued that even as per The Medical Termination of Pregnancy (Amendment) Bill, 2020, the termination is permissible only up to 24 weeks and there is no proposal for its permission irrespective of the gestational age.
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The Court while dismissing the writ petition observed that though the learned counsel for the petitioners pointed out that the petitioners are willing to take a risk, in none of the judgments relied on by Isaac Thomas, the gestational age had exceeded 32 weeks.
“Now it is a question of only some more days left for the full development of the foetus. Therefore, I am of the view that the stage at which permission can be granted has crossed the limits. Moreover, I have already dismissed W.P.(C).No.18610/2020 where gestational age was 31 weeks.”