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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 :

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 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

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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

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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

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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

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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.