IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.50183/2019(GM-RES) NAUSHEEN BANO, W/O THOUSIF, AGED ABOUT 24 YEARS, NO. 18/1, LAL MASJID, B-STREET, SHIVAJINAGAR, BENGALURU 560051.
(BY SMT. JAYNA KOTHARI, ADVOCATE FOR SRI ROHAN KOTHARI, ADVOCATE) AND:
1 . STATE OF KARNATAKA VIDHANA SOUDHA, BENGALURU 560001, REPRESENTED BY ITS CHIEF SECRETARY 2 . MANIPAL HOSPITAL NO. 98, HAL AIRPORT ROAD, BENGALURU 560017, ...PETITIONER REPRESENTED BY THE MEDICAL SUPERINTENDENT 3 . BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE FORT, KR ROAD, BENGALURU 560002.
REPRESENTED BY ITS DIRECTOR CUM DEAN …RESPONDENTS (BY R. SUBRAMANYA, ADDITIONAL ADVOCATE GENERAL A/W SRI VIJAYKUMAR A. PATIL, AGA FOR R1 & R3;
SRI P.N. MANMOHAN, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT No.2, MANIPAL HOSPITAL, BENGALURU TO ADMIT THE PETITIONER AND TAKE NECESSARY MEDICAL STEPS TO TERMINATE HER PREGNANCE AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner – Nausheen Bano aged about 24 years has filed this writ petition seeking permission to terminate her pregnancy which is beyond 20 weeks.
2. It is the case of the petitioner that she is in her second pregnancy. She already has a son by name Tahir, who is aged about 2 years and she has completed her education upto SSLC. She has conceived sometime in Month of 2019 and her pregnancy was progressing normally. She was also having regular scans done as per the directions of her doctors. On 11.10.2019, only when she underwent anomaly scan, at the time of 29th week of pregnancy, for the first time, foetal abnormalities were found and the doctor observed in the said report that due to multiple abnormalities (Duodenal Atresia, AVSD and EIF) the risk for chromosomal abnormalities in particular Trisomy 21 (Down Syndrome) has significantly increased and hence, she was advised to go for amniocentesis for a definitive diagnosis of the conditions which amounts to a blockage of the duodenum which means that the fetus will not be able to digest any form of food due to blockage in the stomach. Therefore, surgery was required to be performed as soon as the baby is born. It is further observed that in a new born baby, Duodenal Atresia often causes intestinal obstruction and if this happens, then another major surgical intervention will be needed. The fetus was also diagnosed with heart abnormalities, as stated, with having partial unbalanced AVSD, which means that the fetus is having a hole in the heart. The ventricles are unbalanced and this is a serious heart abnormality.
3. It is the further case of the petitioner that she underwent second scan on 18th October, 2019 at the Bangalore Fetal Medicine Centre wherein the doctors directed her to undergo amniocentesis as per Annexure-B. Thereafter, she went to ‘MEDGENOME’ – Centre for Genetic Health Care for the Amniotic Fluid Scan (FISH Diagnosis) and the scan report was received by her on 24.10.2019 which revealed that there is presence of Trisomy 21 (Down Syndrome) in the foetus which means, the fetus has Down’s Syndrome. By then, the petitioner was already 30 weeks pregnant. Therefore, she is before this Court for the relief as sought for.
4. This Court after hearing Smt. Jayna Kothari, learned Senior Counsel for the petitioner and Sri R. Subramanya, learned Additional Advocate General along with Sri Vijayakumar A. Patil, learned Additional Government Advocate for respondent Nos.1 and 2, by the order dated 27.10.2019, directed the 3rd respondent to constitute a Medical Board consisting of Specialists, who are handling the cases of termination of pregnancy so as to examine the petitioner and submit a report in a sealed cover before this Court. The petitioner was also directed to appear before the 3rd respondent on 28.10.2019. Accordingly, the 3rd respondent constituted a Medical Board consisting of following eight Specialists to examine the petitioner:
i) Dr. Geetha Shivamurthy, Medical Superintender of Vanivials Hospital, BMCRI, Bengaluru;
ii) Dr. Savitha C., Professor and Head of Department of Obstetrics and Gynecology, Vanivilas Hospital, BMCRI, Bengaluru;
iii) Dr. Gopalkrishna B. Huilgol, ‘C’ Unit Chief, Department of Obstetrics and Gynecology, Vanivilas Hospital, BMCRI, Bengaluru;
iv) Dr. Mallesh, Head of Department of Paediatrics, Vanivilas Hospital, BMCRI, Bengaluru;
v) Dr. Arul Dasan, Professor and Head of Department of Radiology in-charge of Victoria Hospital, BMCRI, Bengaluru;
vi) Dr. Chandrashekar, Professor & HOD, Department of Psychiatry, Victoria Hospital, BMCRI, Bengaluru;
vii) Dr. Anand Alladi, Professor & HOD, Department of Pediatric Surgery, PMSSY, BMCRI, Bengaluru; and viii) Dr. Ravindra, Professor, Department of Medicine, BMCRI, Bengaluru.
5. The Medical Superintendent, Vani Vilas Hospital, Bengaluru, by the letter dated 30.10.2019 addressed to the Office of the Advocate General has submitted the report in a sealed covered and the learned Additional Advocate General has placed the same before the Court. The said sealed cover is opened in the Open Court in presence of the learned Senior Counsel appearing for the petitioner; the learned Additional Advocate General for respondent Nos.1 and 3, and Sri P.N. Manmohan, learned Counsel for respondent No.2.
6. In the report the Pediatric Surgeon has opined that:
“i) Fetus has proven (karyotypically) to have Trisomy 21-outcomes and effects to be opined by Paediatrician.
ii) Fetus has AV septal defect on ultra sound –outcome and effects to opined by cardiologist.
iii) Fetus detected to have double bubble sign on ultra sound which suggestive of duodenal obstruction due to atresia / mal rotation / annular pancreas etc. and the structural defect can be corrected by surgery.
iv) Out comes after surgery would be determined by co-morbidities, immediate neonatal risk factors which if survived, generally may not have any long time sequelae.”
7. The Peadiatric Cardiologist has opined as follows:
“In view of the advanced pregnancy, High Risk to the life of the mother during termination of pregnancy should be given importance and explained to the husband, relatives and the court.
During the termination, if something goes wrong, the doctors cannot be held responsible.”
8. In conclusion the team of eight doctors have opined as under:
“As both membranous type ventricular septal defect and duodenal atrsia re corrected by surgery and or Intervention, Trisomy 21 babies have variable out come, such as developmental delay, advanced maternal pregnancy gestation, Preference may be given to continue pregnancy taking in to account risks involved for mother with termination of pregnancy.
How ever, possible risks, morbidity, mortality inherent to Down’s syndrome, surgery for duodenal atresia, VSD closure may be discussed with parents.”
“Based on all the above examinations and investigations, Mrs. Nausheen Bano, Age 24 years, G2P1L1 with 32 weeks of gestation have multiple anomalies on scan done at Victoria Hospital on 30.10.2019. And there are the finding.
IMPRESSION: Single Live Intrauterine fetus of Gestational age 31 weeks 4 days +/- 3 weeks with cephalic presentation at time of scan with features suggestive of duodenal atresia and membranous ventricular septal defect.
As both membranous type ventricular septal defect and duodenal atresia are corrected by surgery and or Intervention, Trisomy 21 babies have variable outcome, such as a developmental delay.
However baby may be alive if termination is done at this period of gestation and it may need major surgery.
If the patient and her family feels the mental trauma of delivering such a baby, option of termination of pregnancy could be considered.”
9. I have heard the learned Counsel for the parties to the lis.
10. Smt. Jayna Kothari, learned Senior Counsel appearing for the petitioner contended that in view of the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971, pregnancies may be terminated by registered medical practitioners where the length of the pregnancy exceeds twelve weeks, but does not exceed twenty weeks, if atleast two medical practitioners are of the opinion that termination of such pregnancy immediately necessary to save life of a pregnant woman. The petitioner’s pregnancy is more than 20 weeks. Hence, specific direction has to be issued by this Court to any medical practitioner to terminate her pregnancy. The petitioner has left with no other option except to approach this Court as she has crossed pregnancy of 20 weeks.
11. The learned Senior Counsel further contended that the Hon’ble Supreme Court in several cases has permitted the medical practitioner to terminate the pregnancies beyond ceiling of 20 weeks of gestation period as prescribed under Section 3(2) of the Act, where pregnancies involved a grave injury to her physical and mental health; or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped, pregnancies may be terminated as held by the Hon’ble Supreme Court in the case of Tapasya Umesh Pisal –vs- Union of India and Others reported in (2018) 12 SCC 57.
12. The learned Senior Counsel would further contend that the Hon’ble Supreme Court in the case of Mamta Verma –vs- Union of India and Others reported in (2018)14 SCC 289 while considering termination of pregnancy of a woman, who had advanced into the 25th week and there was no danger to the life of the pregnant mother, though was concerned with her pregnancy, permitted termination of pregnancy primarily on the ground that the fetus was not likely to survive and this would cause severe mental injury to the pregnant mother. Thus termination of pregnancy was permitted under the provisions of Section 5 of the Act by reading the contingencies referred to in Clauses (i) and (ii) of Section 3(2)(b) of the Act.
13. The learned Senior Counsel further contended that right to terminate the pregnancy is an integral part of her fundamental rights to privacy, liberty and dignity. The Hon’ble Supreme Court in the case of Suchita Srivastava and Another –vs- Chandigarh Administration reported in (2009)9 SCC 1 at paragraph- 22 has held that 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 recognize 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. Therefore, she sought to allow the writ petition.
14. Per contra Sri R. Subramanya, learned Additional Advocate General for the respondents 1 to 3 contended that in terms of the provisions of Section 3 of the Act, where the length of pregnancy does not exceed twenty weeks termination of pregnancy is permissible. But admittedly, in the present case, she has already exceeded 30 weeks and by termination of pregnancy, the child who is alive in the womb should not be allowed to be killed by the mother. He further contended that ofcourse the petitioner has liberty as contemplated under Article 21 of the Constitution of India and ultimately, it is for the doctor, who has to consider whether it can be terminated or not. Therefore, he sought to dispose off the writ petition. Ultimately under Section 5 of the Act and permission of this Court is necessary for such termination only to save the life of the mother and not otherwise. The said submission is placed on record.
15. Sri P.N. Manmohan, learned Counsel for respondent No.2 submits that if the petitioner approaches the 2nd respondent, it is for the 2nd respondent to take appropriate decision in accordance with law. The said submission is placed on record.
16. Having heard the learned Counsel for the parties, it is an undisputed fact that the petitioner, who is aged about 24 years and in her 30th week of pregnancy, is before this Court mainly on the ground that there is double bubble appearance of stomach, likely suggestive of Duodenal Atresia as suggested by the private doctors in three separate Centers. When this Court had directed the 3rd respondent to constitute a Medical Board consisting of team of eight doctors, they have opined in their report as stated supra. While reading of the medical report submitted by the Medical Board, it has not disputed the fact that the fetus has proved (Karyotypically) to have Trisomy 21 – Outcomes and effect to be opined by Paediatrician. It is also not in dispute that the fetus has AV Septal defect. As both Membranous type of Ventricular Septal defect and Duodenal Atresia are corrected by surgery and or Intervention, Trisomy 21 babies have variable out come, such as developmental delay, advanced maternal pregnancy gestation, Preference may be given to continue pregnancy taking into account risks involved for mother with termination of pregnancy. Ultimately it is observed that however, possible risks, morbidity, mortality inherent to Down’s syndrome, surgery for duodenal atresia, VSD closure may be discussed with the parents. It has also observed that however, baby may be alive, if termination is done at this period of gestation and it may need major surgery. If the patient and her family feel the mental trauma of delivering such a baby, option of termination of pregnancy could be considered.
17. The opinion of the doctors either termination or Intervention, Trisomy 21 baby is not clear cut opinion, but it has been very cleverly opined to avoid any blame on the team of doctors.
18. The Hon’ble Supreme Court time and again has held that even termination of pregnancy beyond 20 weeks to save life of pregnant woman is permissible when there is grave danger to physical and mental health of pregnant woman. The Hon’ble Supreme Court in the case of Meera Santosh Pal and Others –vs- Union of India and Others reported in (2017)3 SCC 462 at para-11 has held as under:
“11. 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.”
19. In the case of XYZ –vs- Union of India reported in 2019 SCC OnLine Bom 560 a Division Bench of Bombay High Court at paragraphs, 79 to 82, 86 and 105 has held as under:
79. Therefore, in a situation where the continuance of pregnancy poses grave injury to the physical or mental health of the mother or in a situation where there is substantial risk that if the child were born, would suffer from deformities and diseases, the pregnant mother is forced to continue with her pregnancy merely because the pregnancy has extended beyond the ceiling of 20 weeks, there would arise a serious affront to the fundamental right of such mother to privacy, to exercise a reproductive choices, to bodily integrity, to her dignity.
80. In contrast the adoption of the principle of liberal or purposive construction will harmonize the provision in section 5 of the MTP Act with the constitutional provisions. It is well settled principle in the interpretation of statutes that if two interpretations are reasonably possible, then the one which harmonizes the statute with the constitution must be preferred to the interpretation which conflicts the statute with the constitution.
81. The Supreme Court has already held that the fundamental right to life which is the most precious human right and which forms the ark of all other rights must be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
82. Human dignity was construed by a Constitution Bench of this Court to be intrinsic to and inseparable from human existence. Dignity, the Court held, is not something which is conferred and which can be taken away, because it is inalienable. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot be given. It simply is. Every human being has dignity by virtue of his existence.
86. Therefore, when it comes to interpretation of the expression “life” in section 5 of the MTP Act, we cannot construe the same as restricted to mere physical existence or mere animal existence or mere survival of the pregnant mother. The expression cannot be confined to the integrity of the physical body alone but will comprehend one's being in its fullest sense. That which facilitates fulfillment of life as much within the protection of the guarantee of life. The expression will include the right to live with dignity and not to merely survive with indignity, not to mention the life long physical and mental trauma which such episodes invariably generate.
105. This legislative liberality when it comes to expanding the concept of the grave injury to mental health cannot evaporate no sooner the ceiling of 20 weeks prescribed in section 3(2)(b) of the MTP Act is crossed. If the expression “life” in section 5(1) of the MTP Act is not to be confined to mere physical existence or survival, then, permission will have to be granted under section 5(1) of the MTP Act for medical termination of pregnancy which may have exceeded 20 weeks, if the continuance of such pregnancy would involve grave injury to the mental health of the pregnant woman.
20. The Hon’ble Supreme Court in the case of A –vs- Union of India reported in (2018) 14 SCC 75 at paragraphs 5 to 8 has held as under:
“5. We have been informed that the foetus is without a skull and would, therefore, not be in a position to survive. It is also submitted that the petitioner understands that her foetus is abnormal and the risk of foetal mortality is high. She also has the support of her husband in her decision-making.
6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 to 26 weeks. The condition of the foetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the foetus would not be able to survive outside the uterus without a skull. Importantly, it is reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioner's life is involved if she is allowed to undergo termination of her pregnancy.
7. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971. Mr Ranjit Kumar, learned Solicitor General appearing for the respondents, has not opposed the petitioner's prayer on any ground, legal or medical. We order accordingly.
8. The termination of pregnancy of the petitioner 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 the petitioner for termination of her pregnancy.”
21. In view of the report submitted by the Team of Specialists of the Medical Board and in view of the provisions of Section 5 of the Act as well as law declared by the Hon’ble Supreme Court, to ensure that there should not be any blame by the petitioner against the doctors, Counsel or any body else, this Court summoned both the petitioner and her husband before this Court and a query was made to both husband and wife, who are present before the Court in presence of their learned Senior Counsel. Both the petitioner and her husband have filed their affidavits which read as under:
“Affidavit of the petitioner I, Nausheen Bano W/o Thousif, aged about 24 years resident of 18/1 Lal Masjid, B Street, Shivajinagar, Bengaluru - 560051, the Petitioner herein do hereby solemnly affirm and state on oath as follows:
1. I state that I am the Petitioner in the accompanying Writ Petition. I am aware of the facts and circumstances of the present case and I am competent to swear to this affidavit.
2. I state that I am fully aware of all the risks and complications of termination of pregnancy at this late stage. I have been explained all the risks and also the various abnormalities that the fetus has. I further state that I have been made aware of the medical report dated 30.10.2019 submitted by the Medical Board of the respondent No.3 regarding the various medical complications of the fetus including Duodenal Atresia and Membranous
developmental delay. The said medical report further states that the pregnancy may be terminated if delivery would cause mental trauma to me.
3. After considering the major fetal abnormalities of Duodenal Atresia, Membranous Type Ventricular Sepal defect, and Trisomy 21 which is Down’s Syndrome and all the life long implications of these abnormalities, it gives me great mental trauma of going ahead with the pregnancy as my family and I do not have the means to carry out the multiple surgeries that these conditions would require. Further, Down’s Syndrome is a developmental disability which is life long. I am not in a position to be able to handle the consequences of all these severe conditions and hence carrying on this pregnancy is causing great mental trauma me. I have discussed the situation with the doctors and my husband and have come to a considered opinion to terminate my pregnancy. It is keeping all these factors in mind and knowing fully well all the risks involved that I would seek permission to terminate my pregnancy.
4. I undertake that if for any reason the pregnancy is not terminated and the child is born alive, myself and my husband will certainly look after the child as our own. I undertake not to blame the doctors, the medical team or my counsels for any complications that may arise during the termination of the pregnancy either to myself or the fetus. I am seeking to terminate my pregnancy being fully aware of all the facts, the medical reports and all the risks involved. There is no or force and I am taking this decision on my own after considering all the factors.
Place: Bengaluru Date: 31.10.2019 Sd/-
Deponent Identified by me Sd/-
Advocate Affidavit of the Husband of the petitioner I, Thousif S/o Mohammed Anwar, aged about 32 years resident of 18/1 Lal Masjid, B Street, Shivajinagar, Bengaluru-560051, the husband of the Petitioner above-named do hereby solemnly affirm and state on oath as follows:
1. I state that I am the husband of the Petitioner in the accompanying Writ Petition. I am aware of the facts and circumstances of the present case and I am competent to swear to this affidavit.
2. I state that the Petitioner and I are fully aware of all the risks and complications of termination of her pregnancy at this late stage. I have been explained all the risks and also the various abnormalities that the fetus has. I further state that I have been made aware of the medical report dated 30.10.2019 submitted by the Medical Board of the respondent No.3 regarding the various medical complications of the fetus which state that the fetus has Duodenal Atresia and Membranous
developmental delay. The said medical report further states that the pregnancy may be terminated if delivery would cause mental trauma to the Petitioner, my wife.
3. After considering the major fetal abnormalities of Duodenal Atresia, Membranous Type Ventricular Sepal defect, and Trisomy 21 which is Down’s Syndrome and all the life long implications of these abnormalities, it gives me and the Petitioner great mental trauma of going ahead with the pregnancy as we or our family do not have the means to carry out the multiple surgeries that these conditions would require. Further, Down’s Syndrome is a developmental disability which is life long. The Petitioner and I are not in a position to be able to handle the consequences of all these severe conditions and hence carrying on this pregnancy is causing great mental trauma to the Petitioner, my wife. I have discussed the situation with the doctors and the Petitioner and thereafter the petitioner has come to a considered opinion to terminate her pregnancy. It is keeping all these factors in mind and knowing fully well all the risks involved that the Petitioner and I would seek permission to terminate her pregnancy.
4. I undertake that if for any reason the pregnancy is not terminated and the child is born alive, the Petitioner and I will certainly look after the child as our own. I undertake not to blame the doctors, the medical team or my counsels for any complications that may arise during the termination of the pregnancy either to the Petitioner, my wife, or the fetus. The Petitioner and I are seeking to terminate the pregnancy being fully aware of all the facts, the medical reports and all the risks involved. I further submit that I have not coerced the Petitioner, my wife, into taking this decision to terminate the pregnancy and the decision to terminate the pregnancy has been taken by her after considering all the factors.
Place: Bengaluru Date: 31.10.2019 Sd/-
Deponent Identified by me Sd/-
Advocate 22. In view of the personal affidavits filed by the petitioner and her husband, considering the report by the 3rd respondent, the entire material on record, writ petition is allowed in the following terms and conditions:
i) The petitioner is permitted to undergo medical surgery/operation of the termination of pregnancy in the hospital of her choice in particular 2nd respondent having medical facility under the medical care and supervision by a Senior Doctor; or ii) Any other hospital of her choice at her own medical expenses and on her own risk and consequence and the concerned Doctor shall ensure all the safety measures in accordance with law:
iii) It is further made clear that the doctors (both Private and Medical Board consisting team of eight doctors – 3rd respondent) , who have issued their reports by putting their opinions on record shall have the immunity in the event of occurrence of any litigation arising out of the instance petition;
23. The valuable assistance and efforts made by the learned senior Counsel for the petitioner, the Additional Advocate General for Respondents No.1 & 3 in getting the report and Sri P.N. Manmohan, learned Counsel for the respondent No.2 are appreciated and placed on record.
Ordered accordingly.
Sd/- Judge Nsu/-