1. The petitioners, the husband and wife, have moved this petition under Article 32 of the Constitution with manifold prayers. In the course of hearing, Mr. Colin Gonsalves, learned senior counsel appearing for the petitioners, has restricted his argument to prayer (g) which pertains to issue of direction for constituting a medical board to assess the pregnancy of the 1 petitioner and direct for termination of the pregnancy.
2. When the matter was listed on 21.6.2017, the Court took note of the prayer for appointment of a panel of doctors at a Government hospital in Kolkata to examine the state of health of the mother and accordingly directed the matter to be listed on 23.6.2017 When the matter was listed on 23.6.2017, this Court had passed the following order:—
In pursuance of the previous order of this Court “dated 21.06.2017, learned standing counsel appearing on behalf of the State of West Bengal has placed on the record his instructions indicating that a team of senior Doctors may be constituted to evaluate the mental and physical health of the first petitioner and the state of health of the foetus. At this stage, the pregnancy is in its 25 week.
The court has been apprised of the medical reports produced on record by the petitioners, including the opinion of Doctor Devi Shetty, which is annexed to the paper book. We accordingly constitute a Medical Board consisting of the following Doctors to examine the first petitioner and her foetus at the Institute of Post Graduate Medical Education & Research (SSKM Hospital) situated at 244 A.J.C Bose Road, Kolkata-700 020:
NAME HOSPITAL ATTACHED Prof. (Dr.) Arati Biswas National Medical College & Hospital Prof. (Dr.) Suchandra Mukherjee I.P.G.M.E.R (SSKM Hospital) Prof. (Dr.) Utpal Das I.P.G.M.E.R (SSKM Hospital) Prof. (Dr.) Subhas Chandra Biswas I.P.G.M.E.R (SSKM Hospital) Prof. (Dr.) Acchyut Sarkar I.P.G.M.E.R (SSKM Hospital) Prof. (Dr.) Sujitesh Saha I.P.G.M.E.R (SSKM Hospital) Prof. (Dr.) Santanu Datta I.P.G.M.E.R (SSKM Hospital)
We request the Medical Board to examine the first petitioner and to submit its evaluation report of the first petitioner and the foetus to this court on 29.06.2017 in a sealed cover. A copy shall also be furnished to the Standing counsel for the State of West Bengal in sealed cover.
List on 29 June, 2017.”
3. In pursuance of the aforesaid order, a Medical Board was constituted and a report was submitted before this Court on 29.6.2017 Thereafter, the matter was directd to be listed today.
4. It is submitted by Mr. Colin Gonsalves, learned senior counsel appearing for the petitioners that the medical report clearly stipulates the condition of the 1 petitioner and if the report is appositely appreciated, the direction, as prayed for, deserves to be granted. We think it appropriate to reproduce the observations and opinion of various members of the Medical Board. The report of the Medical Board reads as under:—
“Observation of Dr. Utpalendu Das, Professor & H.O.D of Radiology, IPGMER-SSKM Hospital, Kolkata- As per the available medical records including anomaly scan dated 25/05/2017 at gestational age of 20 weeks 5 days reveals single life intrauterine fetus with normal fetal anatomy and grown except cardiac anomally with suggestion of Tetralogy of Fallot:
Fetal Echocardiography done on 6 June, 2017 reveals -
Tetralogy of Fallot
Large perimembranous VSD with inlet extension (bidirectional flow)
Aorta from LV overriding the VSD
Pulmonary atresia
Duct/MAPCA dependent pulmonary circulation
Good Veticular Function
Opinion of Dr. Saroj Mondal, Asst. Professor of the Department of Cardiology, IPGMER-SSKM Hospita, Kolkata regarding continuation of pregnancy of Mrs. Sarmistha Chakrabortty, who is carrying 20 weeks 5 days as on 25.05.2017 of pregnancy with normal fetal growth having fetal cardiac malformation detected by fetal echo cardiography on 6 June, 2017 in the form of
Tetralogy of Fallot
Large perimembranous VSD with inlet extension (bidirectional flow)
Aorta from LV overriding the VSD
Pulmonary atresia
Duct/MAPCA dependent pulmonary circulation
Good Veticular Function
As the fetus has complex cardiac anomaly and if pregnancy continued mother will need delivery in a highly equipped centre with facility of neonatal cardiac intervention and surgical facility and will need multiple staged cardiac surgical operation and each occasion, it will have high morbidity and mortality risk.
This case, I already discussed with Dr. Acchyut Sarkar, Associate Professor of the Department of Cardiology, IPGMER-SSKM Hospital, Kolkata who is appointed as Pediatic Cardiologist of this Medical Board.
Impression of Dr. Santanu Dutta, Associate Professor of the Department of C.T.V.S, IPGMER-SS KM Hospital, Kolkata - As per the medical reports available, the fetal echocardiography shows Fetal complex congenital cyanotic heart disease.
Impression:
Pulmonary Artesia with Hypoplastic PAS, large VSD and collaterals arising from aorta.
It is evident from the report tha the neonate needs complex cardiac corrective surgery stage by stage after birth. But there is high mortality at every step of this type of staged surgeries.
Opinion of Dr. Sujitesh Saha, Associate Professor of the Department of Paed. Surgery, IPGMER-SSKM Hospital, Kolkata
As per the medical reports and fetal echo cardiogram done on 6 June, 2017, the fetus is having tetralogy of Fallot, Pulmonary atresia and large VSD, Multiple Collaterals arising from aorta to support the pulmonary circulation. As per records, there is no other fetal congenital malformation detected.
On examination fetal growth parameters are normal. After birth multiple staged cardiac corrective surgery will be required which will be associated with high mortality and morbidity at every stage.
Opinion of Dr. Suchandra Mukherjee, Professor & HOD of Neonatology, IPGMER-SSKM Hospital, Kolkata
Pet the fetal echo-cardigraphy report dated 6 June, 2017, the fetus s having tetralogy of Fallot. Pulmonary atresia and large VSD, Multiple Collaterals arising from aorta to support the pulmonary circulation. No ther fetal congenital malformation was demonstrated in the anomalies scan done at 20 weeks of gestation on 25 May 2017 and fetal growth parameter was found to be normal.
In view of the cardiac malformation, the baby, after birth will require intensive cardiac monitoring and staged management through the surgical procedures which will have high risk of morbidity and mortality depending upon the postnatal course.
Finally in pursuance of the Notice of the Director, IPGMER, Kolkata vide Memo N. Inst./5445 dated 23 June, 2017, a medical board has been convened at 10.00 am on 27 June, 2017 in the Office Chamber of Dr. S.C Biswas, Professor of the Department of Gynae & Obst, IPGMER-SSKM Hospital, in presence of all members of the constituted Medical Board by the Hon'ble Supreme Court, India. However, Associate Professor Dr. Acchyut Sarkar, Department of Cardiology was absent. He deputed Dr. Saroj Mondal, instead of him to express the view of Pediatric Cardiologist, IPGMER-SSKM Hospital, Kolkata
The patient, 1 Petitioner of the case Mrs. Sarmisth Chakrabortty, 33 years old, w/o Mr. Anirban Chakrabortty was examined by the Board Members and all the members expressed their views. Two Gynaecologists, (1) Professor Subhash Chandra Biswas & (2) Professor Arati Biswas, on good faith examined the patient physically and observed the following findings:
Her L.M.P-27.12.2016
E.D.D-4.10.2017
& she is G2Po+1+0+0
Previous pregnancy-she had sudden bleeding P/V & pain abdomen at approximately seven and half months and delivered in Appolo Hospital, Kolkata, a still born baby vaginally (as per previous records) in 2015.
On examination-
She is conscious and co-operative with profound mental agony.
Her Vitals-stable
Per abdominal examination reveals
1. Fundal height of gravid uterus-24 weeks+ (approx 26 weeks) (Corresponding to period of amennaorhoea)
2. Liqour-adequate (as per period of gestation)
3. Fetal parts-Palpable
4. F.H.S+ & Regular
Patient, herself spontaneously expressed her wish not to continue this pregnancy in view of the detected fetal cardiac anomalies so far. On reviewing of the available records of the patient i.e U.S.G, Fetal Echo-Cardiography including the prescription of the attending Obstetrician in Apollo Hospital, Kolkata, the other members of the Board (Radiologist, Cardiologist, Neonatologist, Pediatric Surgeon and Cardiac Surgeon) have opined that “the fetus has been detected to have cardiac malformation in the form of Tetralogy of Fallot, Large perimembranous VSD with inlet extension (bidirectional flow), Aorta from LV overriding the VSD, Pulmonary Atresia, Duct/MAPCA dependent pulmonary circulation and Good Ventricular function. The child, if born alive, need complex cardiac corrective surgery stage by stage after birth. But there is high mortality and borbidity at every step of this staged surgeries”. The cardiac anomaly has been confirmed by serial investigations.
In view of the above facts and opinion, we, the two Gynaecologists, in good faith like to opine that the patient is at the threat of severe mentl injury, if the pregnancy is continued.
Therefore, if the patient wants termination of this pregnancy, she may be allowed with prior informed consent of inherent risk of her health for procedural inventions, because there is additional risk of termination of the pregnancy once it is beyond 20 weeks as the present case is. However, this is a special case and conclusion has been drawn on its individual merits.”
5. On a perusal of the aforesaid report, it is clear as crystal that the Medical Board is of the view that it is a case for termination of pregnancy, as a special case. As the last paragraph would show, the Board has mentioned that the patient is at the threat of severe mental injury, if the pregnancy is continued. It has also opined that the child, if born alive, needs complex cardiac corrective surgery stage by stage after birth. But there is high mortality and borbidity at every step of this staged surgeries.
6. Mr. Gonsalves, learned senior counsel has drawn our attention to two orders, one passed in Meera Santosh Pal v. Union of India [WP (C) No. 17 of 2017 decided on 16.1.2017], wherein this Court, after considering the report of the Medical Board, has held thus:—
“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 of pregnancy is within acceptable limits with institutional back up.”
7. Learned senior counsel has also drawn our attention to another order passed in Mrs. X v. Union of India [WP (C) No. 81 of 2017 decided on 7.3.2017] wherein this Court had allowed the termination of pregnancy. The Court had taken the Medical report into consideration which was to the following effect:
“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 4 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.
8. Mr. A.K Panda, learned senior counsel appearing for the Union of India has drawn our attention to two other orders, one passed in Savita Sachin Patil v. Union of India [WP (C) No. 121 of 2017 decided on 28.02.2017] and another in Sheetal Shankar Salvi v. Union of India [W.P No. 174 of 2017 decided on 27.3.2017]. In the case of Savita Sachin Patil, the Court declined to grant permission by holding, thus:
“As regards the prognosis, the said medical report clearly does not and possibly cannot, observe that this particular fetus will have severe mental and physical challenges. It states that the “baby is likely to have mental and physical challenges.”
In the earlier part of the said medical report, there is no observation made by the aforestated Medical Board that every baby with Down Syndrome has low intelligence, but it was observed that “intelligence among people with Down Syndrome is variable and a large proportion may have an intelligence Quotient of less than 50 (severe mental retardation)”.
In any case, it is not possible to discern the danger to the life of petitioner no. 1 in case she is not allowed to terminate her pregnancy.
In the facts and circumstances of the case, it is not possible for us to grant permission to petitioner no. 1 to terminate the life of the fetus.
In view of the above, as it presently advised, we decline the prayer (a) of the petitioners for directing the respondents to allow Petitioner No. 1 to undergo medical termination of the pregnancy.”
9. In Sheetal Shankar Salvi, after perusing the report, the Court observed that there is no danger to mother's life and the liklihood that the baby may be born alive and survive for variable period of time, and, therefore, it would not be appropriate to allow the petitioner No. 1 to undergo medical termination of her pregnancy.
10. The orders which have been referred to by Mr. Panda, in our considered opinion, rest on their own facts. Frankly speaking, cases of this nature have to rest on their own facts because it shall depend upon the nature of the report of the Medical Board and also the requisite consent as engrafted under the Medical Termination of Pregnancy Act, 1971.
11. In the instant case, as the report of the Medical Board, which we have produced, in entirety, clearly reveals that the mother shall suffer mental injury if the pregnancy is continued and there will be multiple problems if the child is born alive. That apart, the Medical Board has categorically arrived at a conclusion that the in a special case of this nature, the pregnancy should be allowed to be terminated after 20 weeks.
12. In the case of Suchita Srivastava v. Chandigarh Administration [(2009) 9 SCC 1), the Court has expressed the view that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution. She has a sacrosanct right to have her bodily integrity. The case at hand, as we find, unless the pregnancy is allowed to be terminated, the life of the mother as well as that of the baby to be born will be in great danger. Such a situation cannot be countenanced in Court.
13. Regard being had to the aforesaid and keeping in view the report of the Medical Board, we are inclined to allow the prayer and direct medical termination of pregnancy of the 1 petitioner at the IPGMER-SSKM Hospital. The termination procedure to be carried out forthwith by the competent authorities of the IPGMER-SSKM Kolkata. For the sake of clarity, we may hasten to add that Mr. Gonsalves, upon obtaining instructions, has agreed for the said hospital. When we say, ‘carried out forthwith’ it depends when the 1 petitioner and her husband go to the hospital, it shall be conducted without any delay.
14. Accordingly, the Writ Petition is disposed of.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 431/2017
Sarmishtha Chakrabortty & Anr.….Petitioner(s)
v.
Union of India Secretary & Ors.….Respondent(s)
Date : 03-07-2017 This petition was called on for hearing today.
(Before Dipak Misra and A.M Khanwilkar, JJ.)
For Petitioner(s) Mr. Colin Gonsalves, Sr. Adv.
Ms. Sneha Mukherjee, Adv.
Satya Mitra, AOR
For Respondent(s) Mr. Chanchal Kumar Ganguli, AOR
Mr. Sankar Ch. Ghosh, Adv.
Ms. Narmada, Adv.
Mr. A.K Panda, Sr. Adv.
Mr. Swrapurna Chaturvedi, Adv.
Mr. Vipin Kumar, Adv.
Mr. Gurmeet Singh Makker, AOR
UPON hearing the counsel the Court made the following
15. The writ petition is disposed of in terms of the signed order.
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