Courts Must Not Mandate Postnatal Care When Medically Justified Termination Is Permitted: Kerala High Court on Pregnancy Termination Beyond 24 Weeks

“Judicial Orders Must Respect Scientific Protocols and Reproductive Rights under MTP Act”, Kerala High Court delivered a significant judgment concerning medical termination of pregnancy beyond 24 weeks on grounds of substantial foetal abnormalities.

A Division Bench comprising Justice Amit Rawal and Justice P. V. Balakrishnan partly allowed the writ appeal, setting aside a controversial condition imposed by a Single Judge that required full postnatal care and financial responsibility for the foetus if born alive, even after the Court had permitted termination.

“Such a direction militates against established medical protocols, statutory rights under Section 3(2-B) of the Medical Termination of Pregnancy Act, 1971, and the Government of India’s guidelines,” observed the Bench.

The Court modified the earlier order to permit the petitioners to seek assessment from Amrita Institute of Medical Sciences, and if substantial abnormalities are confirmed, to proceed with termination using scientific protocols, including iatrogenic foetal demise where necessary.

The petitioners, a married couple, approached the High Court seeking permission to terminate the pregnancy of Petitioner No.1, Syeda Shazia Talath, which had exceeded 24 weeks, citing serious and irreversible foetal abnormalities, including Down Syndrome and complex cardiac defects.

The Medical Board’s reports (Exts. P3 & P4) confirmed the abnormalities and the risk of the foetus being born severely handicapped. The Single Judge, by order dated 20 June 2025, permitted the termination. However, the Court imposed a controversial clause:

“If the foetus is born alive, the hospital shall render all necessary assistance including incubation and treatment, and the petitioners shall take full responsibility and bear the expenses.”

Challenging this part of the order, the petitioners contended that such a condition not only undermines the relief granted, but also ignores the medical protocol and legal position, especially the Guidelines issued by the Ministry of Health and Family Welfare dated 6 August 2018, which mandate a humane and scientific process for pregnancy termination beyond 24 weeks, including the use of potassium chloride injection to ensure foetal demise before expulsion.

The central legal issue was whether courts can impose a postnatal care obligation on mothers who are lawfully permitted to undergo termination under Section 3(2-B) of the MTP Act, especially when substantial foetal abnormalities are medically established.

Section 3(2-B) of the MTP Act, 1971 states:

“The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by a medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.”

The Court noted that once a Medical Board confirms substantial abnormalities, gestational limits under Section 3(2) cease to apply. In such cases, scientific termination methods, including iatrogenic foetal demise, must be followed, in line with Annexure 4 of the Government of India’s Guidelines.

The Division Bench critically evaluated the Single Judge’s direction and found it to be inconsistent with both medical science and legal standards.

“Judicial interference must be limited to ensuring statutory and procedural compliance, not extending to imposing unrealistic and scientifically inconsistent obligations,” the Court remarked.

Referring to the Royal College of Obstetricians and Gynaecologists (RCOG) guidelines and the MOHFW Notification dated 06.08.2018, the Court held:

“In cases of pregnancy over 24 weeks, an ultrasound-guided procedure is required to ensure the foetus is not expelled alive. This must be performed only by an experienced obstetrician using potassium chloride injection into the foetal heart.”

The Court also noted that Government Medical College, Kalamassery, where termination was initially directed, lacked the facility to perform this sensitive and expert procedure. Only Amrita Institute of Medical Sciences was equipped and competent to carry out the termination scientifically and humanely.

“Directions issued by the Single Judge failed to consider the necessity of a facility with competence to follow the mandated protocol for late-term termination,” held the Bench.

The Court drew support from a previous Division Bench ruling in W.A. No. 477 of 2025 (Judgment dated 12.03.2025), where similar relief had been granted:

“Where substantial abnormalities are found, the petitioner may approach any hospital of her choice for iatrogenic foetal demise in accordance with scientific protocols.”

Citing this precedent, the Court emphasized that each case of late-term medical termination must balance compassion, legal clarity, and procedural safeguards.

Modified Directions by the Division Bench

Rejecting the Single Judge’s directive requiring mandatory postnatal care and full financial liability, the Court modified the order as follows:

1. Assessment by Amrita Institute Permitted:

“The appellant shall have the foetus assessed at Amrita Institute of Medical Sciences and Research Center, Edappally, Kochi.”

2. Medical Board to Apply Section 3(2-B):

“The Medical Board is permitted to assess whether there exist substantial foetal abnormalities as defined under Section 3(2-B) of the MTP Act.”

3. Termination by Scientific Methods:

“If such abnormalities are confirmed, the appellant shall have liberty to proceed with the termination using any scientific method prescribed by the protocol.”

The writ appeal was thus disposed of, setting aside the condition requiring postnatal care if the foetus were to be born alive during the process.

In a principled and medically informed ruling, the Kerala High Court reaffirmed that judicial orders in medical termination cases must respect the framework of the MTP Act, applicable guidelines, and scientific realities.

“When termination is legally permissible on grounds of substantial foetal abnormalities, it is unjust and unreasonable to compel the mother to bear the burden of postnatal care if the foetus is born alive during termination,” the Court asserted.

This judgment strengthens the autonomy and dignity of women, particularly in distress pregnancies, by ensuring that relief under the law is not neutralised by unrealistic or emotionally driven judicial conditions.

Date of Decision: 3 July 2025