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Wednesday, January 18, 2017

seeking directions to the respondents to allow her to undergo medical termination of her pregnancy. She apprehended danger to her life, having discovered that her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infant’s death during or shortly after birth. This condition is also known to endanger the mother’s life.= In Suchita Srivastava and Anr. vs. Chandigarh Administration [(2009) 9 SCC 1], a bench of three Judges held “a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”. The Court there dealt with the importance of the consent of the pregnant woman as an essential requirement for proceeding with the termination of pregnancy. The Court observed as follows:- “22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.....” - whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though, the pregnancy is into the 24th week, having regard to the danger to the life and the certain inability of the fetus to survive extra uterine life, we consider it appropriate to permit the petitioner to terminate the pregnancy. The overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it. In these circumstances given the danger to her life, there is no doubt that she has a right to protect and preserve her life and particularly since she has made an informed choice. The exercise of her right seems to be within the limits of reproductive autonomy. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit petitioner no.1 to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. The learned Solicitor General Mr. Ranjit Kumar who took notice on the last date of hearing has not opposed the petitioners prayer on any ground, legal or medical. We order accordingly. The termination of pregnancy of petitioner no.1 will be performed by the Doctors of the hospital where she has undergone medical check-up. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on petitioner No.1 for termination of her pregnancy. With the aforesaid directions, the instant writ petition is allowed in terms of prayer (a) seeking direction to the respondents to allow petitioner no.1 to undergo medical termination of her pregnancy. Mr. Colin Gonsalves, learned Senior Counsel appearing for the petitioners, submits that the petitioners do not press other prayers in the instant writ petition. We take on record the aforesaid submission made by Mr. Gonsalves, learned counsel appearing for the petitioners.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

                     WRIT PETITION (CIVIL) NO.17 OF 2017



MEERA SANTOSH PAL AND ORS                    PETITIONER(S)
                                   VERSUS
      UNION OF INDIA AND ORS                            RESPONDENT(S)



                                  O R D E R


      Petitioner No.1 – Meera Santosh Pal, is 22 years old,  has  approached
this Court under Article 32 of the Constitution of India seeking  directions
to the respondents to allow  her  to  undergo  medical  termination  of  her
pregnancy.  She apprehended danger to her life, having discovered  that  her
fetus was diagnosed with Anencephaly, a  defect  that  leaves  foetal  skull
bones unformed and is both untreatable and certain  to  cause  the  infant’s
death during or shortly after  birth.   This  condition  is  also  known  to
endanger the mother’s life.
      By order dated 11.1.2017, while issuing  notice  to  the  respondents,
this Court gave a direction for examination of petitioner no.1 by a  Medical
Board consisting of the following seven Doctors :
1.    Dr. Avinash N. Supe, Director (Medical Education & Major Hospitals)  &
Dean (G&K) – Chairman

2.    Dr. Shubhangi Parkar, Professor and HOD, Psychiatry, KEM Hospital

3.    Dr. Amar Pazare, professor and HOD, Medicine, KEM Hosptial

4.    Dr. Indrani Hemantkumar Chincholi,  Professor  and  HOD,  Anaesthesia,
KEM Hospital

5.    Dr. Y.S. Nandanwar, Professor and HOD, Obstetrics, KEM Hospitals

6.     Dr.  Anahita  Chauhan,  Professor  and  Unit   Head,   Obstetrics   &
Gynecology, LTMMC and LTMG Hospitals

7.    Dr. Hemangini Thakkar, Addl. Professor, Radiology, KEM Hospital.

      As on 12.1.2017, she was into her 24th week  of  pregnancy.   This  is
also borne by the report dated 12.1.2017, received from the Director  (ME  &
MH)'s Office, Seth G.S. Medical College & KEM Hospital, Parel, Mumbai –  400
012.
      By  its  report  dated  12.1.2017,  the  Medical  Board  has  examined
petitioner no.1 with specific  reference  to  their  special  expertise  for
general, medical, radiological, psychiatric and anaesthetic  evaluation.  An
obstetric evaluation was done  by  two  Obstetricians.  Ultrasonography  was
performed  at  KEM  Hospital  on  12.1.2017  by  the  Additional  Professor,
Radiology. The said Board has further reported  that  obstetric  examination
shows 24 weeks pregnancy, external ballottement  present,  fetal  parts  not
well felt with mild polyhydramnios. On internal examination, the  cervix  is
posterior and OS is closed. Ultrasonography diagnosis has revealed a  single
live fetus with anencephaly with mild polyhydramnios with hypotelorism.
      We have been informed that the fetus is without  a  skull  and  would,
therefore, not be in a position  to  survive.  It  is  also  submitted  that
petitioner no.1 has undergone psychiatric evaluation. She is reported to  be
coherent,  has  average  intelligence  and  with  good  comprehension.   She
understands that her fetus is abnormal and the risk of  fetal  mortality  is
high. She also has the support of her husband in her decision making.
      Upon evaluation of petitioner no.1, the aforesaid  Medical  Board  has
concluded that her current pregnancy is of about 24 weeks. The condition  of
the fetus is not compatible with extra-uterine life.  In  other  words,  the
fetus would not be able to survive outside the uterus.
      Importantly, it is reported that the  continuation  of  pregnancy  can
gravely endanger the physical and mental health of petitioner no.1  and  the
risk of her termination  of  pregnancy  is  within  acceptable  limits  with
institutional back up.
      This Court, as at present being advised,  would  not  enter  into  the
medico-legal  aspect  of  the  identity  of  the  fetus  but   consider   it
appropriate to decide the  matter  from  the  standpoint  of  the  right  of
petitioner no.1 to preserve her life in view of the  foreseeable  danger  to
it, in case she allows the current pregnancy to run  its  full  course.  The
medical evidence clearly suggests that there is no  point  in  allowing  the
pregnancy to run its full course since  the  fetus  would  not  be  able  to
survive outside the uterus without a skull.
      In Suchita Srivastava and Anr. vs. Chandigarh  Administration  [(2009)
9  SCC  1],  a  bench  of  three  Judges  held  “a  woman’s  right  to  make
reproductive  choices  is  also  a  dimension  of  ‘personal   liberty’   as
understood under Article 21 of the Constitution”.   The  Court  there  dealt
with the importance of the consent of the pregnant  woman  as  an  essential
requirement for proceeding with the termination  of  pregnancy.   The  Court
observed as follows:-
“22. There is no doubt that a woman’s right to make reproductive choices  is
also a dimension of “personal liberty” as understood  under  Article  21  of
the Constitution of India. It is important to  recognise  that  reproductive
choices  can  be  exercised  to  procreate  as  well  as  to  abstain   from
procreating. The crucial consideration is that a woman’s right  to  privacy,
dignity and bodily integrity should be  respected.  This  means  that  there
should be no restriction whatsoever on the exercise of reproductive  choices
such as a woman’s right  to  refuse  participation  in  sexual  activity  or
alternatively the insistence on use of contraceptive  methods.  Furthermore,
women are also free to choose  birth  control  methods  such  as  undergoing
sterilisation procedures. Taken to their  logical  conclusion,  reproductive
rights include a woman’s entitlement to carry a pregnancy to its full  term,
to give birth and to subsequently raise children.....”

      The crucial consideration in the present case is whether the right  to
bodily integrity calls for a  permission  to  allow  her  to  terminate  her
pregnancy.  The report of the Medical Board clearly warrants  the  inference
that the continuance of the pregnancy involves the risk to the life  of  the
pregnant woman and a possible grave injury to her physical or mental  health
as required by Section 3 (2)(i) of  the  Medical  Termination  of  Pregnancy
Act, 1971.  Though, the pregnancy is into the 24th week,  having  regard  to
the danger to the life and the certain inability of  the  fetus  to  survive
extra uterine life, we consider it appropriate to permit the  petitioner  to
terminate the pregnancy.  The overriding consideration is  that  she  has  a
right to take all such steps as necessary to preserve her own  life  against
the avoidable danger to it.
      In these circumstances given the danger  to  her  life,  there  is  no
doubt  that  she  has  a  right  to  protect  and  preserve  her  life   and
particularly since she has made an informed choice.   The  exercise  of  her
right seems to be within the limits of reproductive autonomy.
      In the circumstances, we consider it appropriate in the  interests  of
justice and particularly, to  permit  petitioner  no.1  to  undergo  medical
termination of her pregnancy under the provisions of Medical Termination  of
Pregnancy Act, 1971.  The learned Solicitor General  Mr.  Ranjit  Kumar  who
took notice on the last date of hearing  has  not  opposed  the  petitioners
prayer on any ground, legal or medical.  We order accordingly.
      The termination of pregnancy of petitioner no.1 will be  performed  by
the Doctors of the  hospital  where  she  has  undergone  medical  check-up.
Further, termination of her pregnancy  would  be  supervised  by  the  above
stated Medical Board who shall maintain complete  record  of  the  procedure
which is  to  be  performed  on  petitioner  No.1  for  termination  of  her
pregnancy.
      With the aforesaid directions, the instant writ  petition  is  allowed
in terms of prayer  (a)  seeking  direction  to  the  respondents  to  allow
petitioner no.1 to undergo medical termination of her pregnancy.
       Mr.  Colin  Gonsalves,  learned  Senior  Counsel  appearing  for  the
petitioners, submits that the petitioners do not press other prayers in  the
instant writ petition.
      We take on record the aforesaid submission made by     Mr.  Gonsalves,
learned counsel appearing for the petitioners.

                                                    .......................J
                                                               [S. A. BOBDE]



                                                    .......................J
                                                          [L. NAGESWARA RAO]

NEW DELHI;
JANUARY 16, 2017.



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