JUDGMENT

Dated this the 5^th day of January, 2023 Petitioners, a married couple, have undergone continuous infertility treatment and as a result, the first petitioner conceived at the age of 46 years. They have approached this Court seeking permission to terminate the first petitioner's pregnancy which has crossed the gestational age of 26 weeks. The petitioners had to take the difficult decision, prompted by the foetal anomalies detected in the obstetric scan conducted on 05.10.2022 and the subsequent tests. Ext.P1 scan report revealed that the foetus was detected with trisomy 21 (Down Syndrome). This abnormality was confirmed in the subsequent obstetric scan also. On 24.12.2022, the petitioners sought medical advice and were informed about the high risk involved in child birth as the foetus carries multiple anomalies.

As the scan reports and medical opinion revealed multiple abnormalities to the foetus, the petitioners decided to get the pregnancy medically terminated. The petitioners' predicament is that, in the absence of a Medical Board constituted in accordance with Section 3(2C) of the Medical Termination of Pregnancy (Amendment) Act, 2021, no medical practitioner will conduct the procedure. Hence, this writ petition.

2. When the writ petition came up for admission on 03.01.2023, this Court directed the 3^rd respondent to constitute a Medical Board and make available the opinion of the experts. Responding to the direction, the 3^rd respondent has submitted a detailed report, the relevant portion which reads as under;

“Cardiology Opinion:

Sandhya Thankachan 46 yrs, was examined and available investigation reports reviewed. The foetus is diagnosed to have trisomy 21 which carries around 40% risk of congenital heart disease. The antenatal USG has not documented any structural Cardiac abnormality. Hence there is no absolute Cardiac contraindication at present to continue pregnancy.

Paediatrician Opinion:

Trisomy 21 (Down Syndrome) Is Chromosomal anomaly, with high risk of having developmental delay and intellectual disability in future life However the present scans has not shown any lethal anomaly requiring a termination of pregnancy.

Psychiatry Opinion:

History noted from Mrs. Sandhya and her husband. She has no past or family history of psychiatric disorders. No history of pervasive mood symptoms or Psychotic symptoms. O/E she is conscious and oriented. Mood is euthymic, no Psychotic symptoms. Her judgement is intact. No signs of active Psychopathology detected at present.

Radio Diagnosis Opinion.

USG (4/01/2023)-SLIUG 24 weeks 5 days AFI 21cm (Increased) Short Maxilla, Echogenic small Bowel, short humerus-soft tissue markers for Trisomy-21.

Impression

46yr old G2 P1L1 with h/o infertility treatment the foetus was detected to be 21 (Down Syndrome), as per karyotyping. The foetus also has soft tissue markers positive for Trisomy-21 with Polyhydramnios. The foetus carries risk for anomalies.

The subject carries normal risk for second trimester MTP complications. However since the gestational age is 26 weeks there is a chance for survival of the premature baby.”

3. From a reading of the report, it is evident that the foetus is suffering from multiple abnormalities, some of which are grave in nature. The experts have opined that the feotus was detected with high risk chromosomal anomaly having developmental delay and intellectual disability in future life. In conclusion, it is stated that the foetus carries high risk for anomalies. In the light of the above opinion, it will be appropriate to refer to Section 3 of the Medical Termination of Pregnancy Act, 1971;

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3. When pregnancies may be terminated by registered medical practitioners.—(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject