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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

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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

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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

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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 un- derstood under Article 21 of the Constitu- tion of India. It is important to recog- nise that reproductive choices can be ex- ercised to procreate as well as to abstain

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from  procreating.  The  crucial  considera- tion is that a woman’s right to privacy, dignity and bodily integrity should be re- spected. 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. Further- more, women are also free to choose birth control methods such as undergoing steril- isation 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.

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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.

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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.