Kerala High Court Allows Termination of 31-Week Pregnancy Due to Severe Foetal Abnormalities, But Declines ‘Iatrogenic Foetal Demise’: ‘Unborn Child Also Has the Right to Life’”
Kiran Raj
The Kerala High Court, Single Bench of Justice C.S. Dias delivered a judgment concerning the medical termination of an advanced pregnancy. The petitioner, a woman in her 31st week of pregnancy, sought the court's permission for termination due to severe foetal abnormalities. The court, while allowing the medical termination, denied the request for iatrogenic foetal demise, stating the rights of the unborn child and procedural safeguards under statutory provisions.
The petitioner conceived her second pregnancy in July 2024 and underwent regular medical check-ups and ultrasound scans at different intervals. Reports from multiple medical institutions confirmed normal foetal development until February 2025, when an ultrasound report dated February 10, 2025, identified significant abnormalities in the foetus's brain structure. Further medical examinations and consultations with specialists confirmed that the foetus suffered from the absence of cavum septum pellucidum and corpus callosum, two essential structures of the brain. The medical consensus established that these abnormalities would lead to severe mental and physical disabilities if the baby were born alive.
Following these findings, the petitioner approached the court citing extreme mental and physical distress. She submitted that carrying the pregnancy to term would not only result in emotional suffering for her and her family but would also impose lifelong challenges due to the severe disabilities of the unborn child. She sought medical termination under the Medical Termination of Pregnancy (MTP) Act, 1971, which permits termination under specific conditions, including substantial foetal abnormalities diagnosed by a medical board.
The court directed the petitioner to be evaluated by the Medical Board of the Government Medical College, Ernakulam. The Medical Board, comprising specialists from the fields of obstetrics and gynaecology, radiodiagnosis, paediatrics, and psychiatry, conducted a detailed review of the foetal ultrasound reports and the petitioner’s medical history. The Board submitted its report on March 5, 2025, confirming the foetal abnormalities and stating associated risks. It noted that the baby, if born alive, would likely suffer from severe neurological impairments. The report further explained that, due to the petitioner’s previous caesarean section, induction of labour was not a viable option, necessitating a repeat caesarean section with its inherent surgical and anaesthetic complications.
The court examined the relevant provisions of the MTP Act, 1971, with a focus on Section 3(2B), which allows termination beyond 24 weeks if a medical board determines that the foetus has substantial abnormalities. The judgment referenced multiple precedents, including XYZ v. State of Gujarat (2023 SCC Online SC 1573) and A v. State of Maharashtra [(2024) 6 SCC 327], which affirm reproductive autonomy while requiring medical board evaluations in late-term pregnancy terminations.
The court stated:
“The Medical Board’s report unambiguously demonstrates that there exists a considerable risk that the baby will be born with neurological abnormalities if born alive. Consequently, 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(2B) of the Act.”
However, the petitioner also requested that the foetus be administered an intracardiac injection before the termination procedure to prevent the possibility of live birth. The court examined this request in light of constitutional rights and prior judgements. It cited Indulekha Sreejith v. Union of India (2021 (5) KHC 269), which recognized the right to life of an unborn child under Article 21 of the Constitution of India. The court held:
“Now that the gestation period has progressed beyond 32 weeks, the Medical Board’s opinion is that there is a likelihood of the baby being born alive, and the unborn child also has the right to life; I decline permission for the termination of life through an intracardiac injection.”
The court further observed that while the petitioner had the right to seek termination under the MTP Act, the possibility of a live birth necessitated adherence to specific legal and medical protocols. The court stated that in the event of live birth, the child should receive all necessary medical care and be placed in a legally recognized adoption process if the petitioner and her husband were unwilling to take responsibility. The judgement aligned with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, ensuring that the child, if born alive, would be protected under the law.
The court rejected the petitioner’s request to undergo the procedure at a hospital of her choice, directing that the termination be carried out at the designated government hospital under the supervision of an expert medical team. It stated the necessity of maintaining procedural and medical safeguards in such cases.
The High Court issued the following directives
- The petitioner’s request for iatrogenic foetal demise was denied.
- The petitioner’s request to choose the hospital for the procedure was rejected.
- The 4th respondent (Head of the Department of Obstetrics and Gynaecology, Government Medical College, Ernakulam) was directed to conduct the termination procedure under expert medical supervision.
- The medical team was instructed to use the safest medical approach available to terminate the pregnancy while prioritizing the petitioner’s health.
- The petitioner and her husband were required to submit an undertaking assuming full responsibility if the baby was born alive and agreeing to surrender the child to a recognized childcare institution if necessary.
- The District Child Protection Officer was directed to counsel the petitioner and her husband regarding the legal procedures for child surrender.
- The hospital was instructed to provide all necessary neonatal care and medical assistance if the child was born alive.
- The court directed the Registry to anonymize the names and details of the petitioner in the judgment to maintain privacy.
Advocates Representing the Parties
- For the Petitioner: George Varghese (Perumpallikuttiyil), Manu Srinath, Lijo John Thampy, Nivedita Muchilote, Riyas M.B. Advocates
- For the Respondents: Smt. Vidhya Kuriakose (State of Kerala), Government Pleader
Case Title: XXXXX v. Union of India & Others
Neutral Citation: 2025: KER:19768
Case Number: WP(C) No. 8514 of 2025
Bench: Justice C.S. Dias
[Read/Download order]
