MRS. X AND ORS Vs. UNION OF INDIA AND ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Civil), 81 of 2017, Judgment Date: Feb 07, 2017

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

                  WRIT PETITION (CIVIL) NO. 81      OF 2017



Mrs. X AND ORS.                                                PETITIONER(S)
                                   
                                   VERSUS

UNION OF INDIA AND ORS                                         RESPONDENT(S)


                                  O R D E R

             Application  for  non-disclosure   of  names  and   detail   of
petitioner No. 1 and 2 is allowed.   

      The Petitioner No. 1-  Mrs.  X  is  about  22  years'  old.   She  has
approached this Court under Artilce 32 of the Constitution of India  seeking
directions to the respondents to allow her to  undergo  medical  termination
of her pregnancy.  According to her, fetus which is about 22  weeks  old  on
the date of the petition has a condition knowns as bilateral renal  agenesis
and anhydramnios. She apprehends that the fetus has no  chance  of  survival
and the delievery may endanger her life.

            In order to verify the  condition  of  petitioner  No.  1,  this
Court by order dated 03.02.2017  while issuing  notice  to  the  respondents
directed examination of the petitioner by  a  medical  Board  consisting  of
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.

      By its report dated 04.02.2017, the Medical Board  as  constituted  by
this Court has given its expert opinion upon reviewing the complete  history
as narrated by the petitioner No.  1  and  her  brother  alongwith  all  the
papers.  The petitioner  No. 1 was examined by all the  Board  Members  with
specific recourse to the specialty.

      The learned Solicitor General who appears on behalf of Union of  India
had the report evaluated by   Doctor  Veena  Dhawan  from  the  Ministry  of
Health.  The said Doctor does not disagree with the findings by the  Medical
Board and is also in agreement with  the  proposed  action  by  the  Medical
Board.  The salient features of the report are :
“.. Ultrasonography diagnosis is single live fetus with gestational  age  of
24 weeks 3 days with bilateral  renal  agenesis  with  double  outlet  right
ventricle  with  ventricular  septal  defeat  with  two  vessel  cord   with
anhydramnios....

      Opinion of Pediatric Surgeon in charge of Birth Defect Clinic :  There
is risk of intrauterine fetal death/ still birth and there is no  chance  of
long term post natal survival, and no curative  treatment  is  available  at
present for bilateral rengal agenesis.

      There is thus a clear diagnosis of the condition of  the  single  live
fetus  which is said to have bialateral  renal  agenesis  wheich  means  the
fetus has no kidneys and anhydramnios which means that there is  an  absence
of amniotic fluid in the womb.  Further, there is a clear  observation  that
there is a risk of  intrauterine fetal death, i.e.  death  within  womb  and
there is no chance of a long term post natal survival.   What  is  important
is that there is no curative treatment available at  present  for  bilateral
renal agenesis.

            The Medical Board has opined that the condition of the fetus  is
 incompatible  with  extra-uterine  life,  i.e.  outside  the  womb  because
prolonged absence of amniotic fluid results in pulmonary hypoplasia  leading
to severe respiratory insufficiency at birth.  From the  point  of  view  of
the  petitioner  the  report  has  observed  risk  to   the   mother   since
continuation of pregnancy can endanger her physical and mental health.

            We have already vide order dated 16.01.2017 upheld the right  of
a mother to preserve her life in view of  foreseeable  danger  in  case  the
pregnancy is allowed to run its  full  course.   This  Court  in  that  case
relied upon  the  case  of   Suchita  Srivastava  and  Anr.  vs.  Chandigarh
Administration [(2009) 9 SCC 1], where  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”.   In  these
circumstances we find that the right of 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  petitioner  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.    It
may be noted that Section 5 of the  Act  enables  termination  of  pregnancy
where an opinion if formed by not less than two medical practitioners  in  a
case where opinion is for the termination of such pregnancy  is  immediately
necessary to save the life of the pregnant woman.

            Though the current pregnancy of the  petitioner  is  about  24th
weeks and endanger to the life and   inevitable to the death  of  the  fetus
outside womb, we  consider  it  appropriate  to  permit  the  petitioner  to
undergo termination of her pregnancy under the  provisions  of  the  Medical
Termination of Pregnancy Act, 1971.   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.

            Shri Ranjit Kumar, learned solicitor General rightly points  out
that the affidavit in the present case is not sworn by petitioner No. 1  who
seeks termination of  her  pregnancy  and  is  sworn  by  a  Doctor  who  is
petitioner No.3.    We  might  note  that  a  relator  action   may  not  be
permitted in a case of this kind.   There  would  be  various  circumstances
about which the  Court  must  be  assured  of  before  the  order  is  made.
Conceivably,  in  a  given  case   petitioner  No.  1  may   be  under  some
misconception or under coercion.   We  do not find that  to  be  case   here
because Petitioner No. 1 has been examined by the Medical  Board  about  her
mental condition.  In fact the Board has made a  psychiatric  evaluation  of
her and has stated that the patient is co-operative and  coherent   and  has
no psychiatric or emotional problems.  Hence  we  do  not  propose  to  deny
relief to  petitioner No. 1.   It is however, made clear  that  such  action
must be  supported  by   affidavits  of  the  petitioner  No.  1  herself  .
Needless  to  state  that  KEM  Hospital  will  take  her   consent   before
terminating 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.

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



                                                    .......................J
                                                          [L. NAGESWARA RAO]
NEW DELHI;
FEBRUARY 07, 2017.