Point of Law : Termination of pregnancy - An unborn child has a life of its own and rights of its own and rights of unborn are recognised by law - No doubt, only if the unborn can be treated as a person, right to life of unborn can be equated with fundamental right of mother guaranteed under article 21 of Constitution.

JUDGMENT :

A pregnant woman, the gestation of whose pregnancy corresponds to 31 weeks, has approached this Court seeking directions to the respondents to terminate her pregnancy. The case of the petitioner is that though substantial foetal abnormalities have been diagnosed, the respondents are refusing to terminate the pregnancy, as the outer time limit prescribed for termination in terms of the provisions of the Medical Termination of Pregnancy Act, 1971 (the Act) is over.

2. Heard the learned counsel for the petitioner as also the learned Government Pleader.

3. On 17.8.2021, this court passed the following interim order :

“Heard the learned counsel for the petitioner and the learned Government Pleader.

Superintendent, Medical College, Alappuzha is suo motu impleaded as additional respondent No.6. There will be a direction to the Superintendent, Medical College, Alappuzha to convene the permanent medical board specified under Exhibit P6, Government Order, G.O.(Rt) No.2444/2020/H&FWD dated 31-12-2020 and to arrange for the medical examination of the petitioner with further direction to submit a medical report before this Court on or before 31.08.2021.

Post on 31.08.2021.”

4. In compliance with the interim order aforesaid, the Medical Board at the Medical College Hospital, Alappuzha examined the petitioner on 24.8.2021, and the report of the Medical Board has been made available to the Court. The operative portion of the report reads thus:

“Mrs. Indulekha Sreejith, aged 34 yrs, attended Medical Board along with her father K.K. Gopinath 66 yrs and mother Sobana Kumary 60 yrs at 11 am on 24/08/2021. Indulekha Sreejith is a 3rd gravida with 2 normal deliveries in past. Her LMP 17/01/2021 and gestational age is 29 weeks as per L.M.P. Ultra sound done on 24/08/2021 from TDMC, Alappuzha showed gestational age of 30 weeks +4 days. The Left Kidney of the fetus is muti cystic dysplastic with PUJ obstruction. Both Humerus bone length is less than 1 percentile. Other bones appear normal. No lethal anomalies detected in the present scan.

Medical Board evaluated the patient's condition and reached the following conclusion.

Anomaly detected in antenatal scan is non lethal and present gestational age is 30 weeks + 4 days. No Chromosomal study reports are available at present. So termination of pregnancy may result in a live baby who may need prolonged hospitalisation because of prematurity. So it will be better to continue the pregnancy till term.” (underline supplied)

The case of the petitioner that there is foetal abnormalities cannot be disputed in the light of the said report. But, as seen from the report, since it is found that the abnormalities are not lethal and the termination of pregnancy is likely to result in a live baby, the Medical Board is not in favour of termination of the pregnancy. The question falls for consideration, therefore, is whether this court would be justified in permitting medical termination of pregnancy in a case where a duly constituted Medical Board opines that the foetal abnormalities are not lethal and the stage of pregnancy is such that it may result in a live baby, merely for the reason that the pregnant woman chooses to terminate the pregnancy.

5. Before proceeding to decide the question, it is necessary to refer to the object of the Act. It is seen that the Act has been introduced to legalise termination of pregnancy by registered medical practitioners in certain contingencies which would have otherwise constituted the offence of causing miscarriage in terms of the provisions of the Indian Penal Code, mainly with a view to protect the life and health, both physical and mental, of the pregnant woman. Going by the provisions contained in sub-section (2) of Section 3 of the Act, a pregnancy can be medically terminated only if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health or there is a substantial risk that if the child were born,