Kerala High Court
Merin Treesa Jose vs Union Of India on 16 February, 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 16TH DAY OF FEBRUARY 2026 / 27TH MAGHA, 1947
WP(C) NO. 5249 OF 2026
PETITIONER/S:
1 MERIN TREESA JOSE
AGED 32 YEARS
, W/O. ANTONY JOSEPH, CHAMPANOOR KOCHUPARAMBIL HOUSE,
NEDUMKUNNAM, KOTTAYAM, PIN - 686542
2 ANTONY JOSEPH
AGED 38 YEARS
S/O. MA PAPPACHAN, MOONJELY HOUSE, SREEMOOLANAGARAM
P.O, ERNAKULAM, PIN - 683580
BY ADVS.
SRI.S.K.ADHITHYAN
SMT.SHAHINA NOUSHAD
SHRI.KRISHNA S. KARUNAKARAN
SHRI.JAI PRAKASH CHOUDHARY
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, NEW DELHI, PIN - 110001
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY
WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 GOVERNMENT MEDICAL COLLEGE HOSPITAL
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KOTTAYAM, REPRESENTED BY ITS MEDICAL SUPERINTENDENT,
GANDHI NAGAR, KOTTAYAM, PIN - 686008
4 HEAD OF DEPARTMENT
DEPARTMENT OF OBSTETRICS AND GYNECOLOGY, GOVERNMENT
MEDICAL COLLEGE HOSPITAL, KOTTAYAM, PIN - 686008
5 THE PERMANENT MEDICAL BOARD
REPRESENTED BY MEDICAL SUPERINTENDENT, GOVERNMENT
MEDICAL COLLEGE HOSPITAL, KOTTAYAM, PIN - 686008
OTHER PRESENT:
SHAMEER P.M. - G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The first petitioner the wife, who has been seeking medical
termination of 25 weeks old pregnancy, after having found that
the foetus suffers from fatal abnormalities including issues to the
heart like large Cono Ventricular Septal Defect(VSD) associated
with double outlet right ventricle. On 03.02.2026, fetal
echocardiography done at Amrita Institute of Medical Sciences
and Research Centre, Ernakulam, evidenced by Ext.P1 report, in
which, it was found that the foetus was also diagnosed with
pulmonary atresia, which is congenital heart defect where the
pulmonary valve is blocked preventing blood flow from the right
ventricle to the lungs. There was also absence of the aortic arch
as the actions of the same are generally considered abnormal.
The foetus was also diagnosed with Tetralogy of Fallot which
means that the baby’s heart over grows during pregnancy.
According to the petitioners, as per Ext.P1, the foetus is suffering
from major anomalies and if at all, the child is born alive, the
quality of life would be so poor that even movement would not be
possible. The petitioners, therefore, seek for a direction to the
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3rd respondent to permit the 1 st petitioner to undergo medical
termination of pregnancy.
2. Heard the learned counsel for the petitioners, the
learned CGC and the learned Government Pleader.
3. When the writ petition came up for consideration on
11.02.2026 this Court directed the third respondent to constitute
a Medical Board for the purpose of assessing the following:-
(i) whether continuance of the petitioner’s
pregnancy would involve risk to her life or grave
injury to her physical or mental health?
(ii) whether there is a substantial risk that if the
child was born, it would suffer from such physical
or mental abnormalities as to be seriously
handicapped and if so, the nature of abnormalities
and
(iii) whether, having regard to the advanced stage
of pregnancy, there is any danger (other than
usual danger which arises even in spontaneous
delivery at the end of full term) if the pregnant
mother is permitted to terminate her pregnancy?
4. Today, the learned Government Pleader made available
to this Court the report of the Medical Board dated 13.02.2026
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comprising of Professor & HOD Department of OBG, Professor
(CAP) Department of OBG, Foetal Medicine Assoc. Prof. (CAP)
Dept. Of OBG, Assistant Professor Dept. Of Radio Diagnosis,
Assistant Professor Dept. Of Cardiology, Assistant Professor,
Department of Paediatrics (Neonatology Dept. Of Paediatrics),
Associate Professor (CAP) Department of Psychiatry of the
Government Medical College Hospital, Kottayam. The conclusion
and final opinion of the Medical Board are as follows:-
Conclusion:
SL.No. Report Opinion on the findings
01. Merin Treesa Jose, 33 yrs. a. Continuation of pregnancy
Department G3P1L1A1, LMP: 12/08/2025, is not likely to produce
of OBG: EDC:19/05/2026 POG: 26 w 3 days. increased risk to her life or
H/o Hypothyroidism on Thyronorm grave injury to her physical
100microgram, H/o ANC from Thiruvalla health
Medical Mission and detected to have
Cardiac anomalies. Detailed Echo was b. Evaluated the patient and
done at Amrita Institute of Medical fetal echo study done at AIMS
Sciences. USG on 03/02/2026 KOCHI. Study suggestive of
TOF WITH PULMONARY
TOF, Large VSD, Pulmonary atresia ATRESIA with confluent
Consulted 03 Unit, Fetal Medicine pulmonary arteries. This
Department of GMC, Kottayam. condition is not incompatible
with life and child will require
O/E: Pulse rate :86/minute, BP106/72 multiple high risk staged
mmHg, Ht; 162 cm, Wt: 73 kg, P/A-26 W, procedures for its survival,
Fetal Parts + Final Cardiac Diagnosis and also there is chance of
surgical revision in adulthood
Tetralogy of Fallot, Large conoventricular if need arises.
VSD routable to aorta, Pulmonary atresia
with confluent pulmonary arteries, c. Due to the advanced
Vertical ductus arising from undersurface gestational age medical
of arch supplying the pulmonary arteries, methods to induce
Left arch, no coarctation / MAPCAs, Sinus contractions may fail which
rhythm. will lead to hysterotomy.
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USG on- 13/02/2026:
SLIUGS corresponding to 24 W 4 D,
Conotruncal VSD with small sized
pulmonary artery and non visualization of
RVOT- likely pulmonary atresia.
02. Dept This patient Merin Treesa g2a1 at 26week This is a critical congenital
OBG-Fetal 3d of gestation has been diagnosed with heart defect which requires
Medicine TOF WITH PULMONARY ATRESIA on staged surgeries and multiple
anomaly scan confirmed BY echo BY interventions after birth was
PEDIATRIC CARDIOLOGIST FROM AIIMS conveyed to the couple
COCHIN
03. SLIUG with GA by USG-24 weeks 4 days Pulmonary atresia with VSD
Dept of Conoventricular VSD Pulmonary atresia Decision on termination as
Radio with hypoplastic main pulmonary artery. per cardiologist opinion
Diagnosis
04. Dept. Of Ms. Merin Treesa Jose, 33 years old Based on the current fetal
Cardiology female, G3P1L1A1, LCB-3 years previous echo from AIMS on
LSCS, Overt hypothyroidism, with 25 03.02.2026, child once born
weeks current pregnancy, detected to may require serial
have congenital cardiac anomaly for the medical/surgical interventions
fetus at 20weeks anomaly scan. Diagnosed including postnatal PG
to have Tetralogy of Fallot, large infusion, PDA stenting, BT
conoventricular VSD, Pulmonary atresia shunt followed by definitive
with confluent pulmonary arteries, vertical intracardiac repair. In those
ductus with ductus dependant pulmonary cases requiring a
circulation, no coarctation of aorta or transannular patch repair,
MAPCAs from Amrita Institute of Medical future risk of development of
Sciences, Kochi pulmonary regurgitation and
repeat intervention in
adulthood is also anticipated.
At present, such an anatomy
is not incompatible with life
and is expected to have good
surgical outcome in excess of
> 95% survival in
experienced centres. It is
reported to have > 90% 1
year survival and >80% 10
years survival based on
available literature. In view of
the anticipated need for
multiple procedures and the
financial and emotional
burden on the family, it may
be allowed to proceed with
MTP if family is insisting on
the same.
05. G3PILIA1, 33 yr female, Merin Treesa This condition is not
Dept. of Jose, 26 wk 3 days GA, with fetal echo incompatible with life with 10
pediatrics showing Tetrology of Fallot with year survival rate of TOF with
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pulmonary atresia in fetus. absent pulmonary valve of 73
cases operated in AIIMS Delhi
is 92% (Talwar et al, 2016)
and western literature
reporting 30 yr survival of
78% (Blais et al, 2021). The
survival is decreased to 60%
if genetic component is
present (not evaluated in
present case). The baby may
require multiple staged
surgeries. The likelihood of
developmental delay is less if
the baby is born at term
gestation. Since this cardiac
condition compatible with life
and the operation is being
done at many centres in
Kerala under Kerala
government scheme:
Hridyam. Hence termination
of pregnancy is not advisable
at this stage from the baby’s
perspective unless the
emotional and economic
burden of these multiple
surgeries causes grievous
harm to parent’s mental
health.
06. Dept. of Evaluated the mental status of Merin As per the mental status
Psychiatry Treesa Jose, 33yrs. She is conscious, alert examination of Merin Treesa
and oriented to time place and person. Jose, it is inferred that the
She is cooperative and answers questions continuation of pregnancy is
relevantly and coherently. No disorder of likely to be associated with
stream, form or possession is elicited. No significant emotional distress
delusions or hallucinations are elicited. to her mental health.
Mrs. Merin Treesa Jose became tearful
while describing the details of the health
status of the fetus and the anomalies
reported in the Fetal Scan in her own
words. Thought content has features of
grief associated with the current stressor.
No other core depressive cognitions are
elicited.
Mrs.Merin Treesa Jose reports
significant anxious cognitions regarding
continuation of her pregnancy. She
reports that she finds it not possible to
continue the pregnancy as it causes very
severe emotional distress to her while
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evaluating her current and future life. She
does not report of any guilt ideations
regarding her wish to terminate the
pregnancy and says that it is the best
course of action for her and her fetus.
Cognitive functions are within normal
limits. Clinical assessment of intelligence
indicate above average intellectual
functioning. She has adequate judgment
and insight regarding her present health
condition and that of the fetus. She is able
to assess appropriately the medical
information provided to her by doctors
regarding the health of her fetus.
07. Dept. of Ms. Merin Treesa Jose, 33 years old Evaluated the patient and
Cardiothora female, G3PILIA1, LCB- 3 years previous fetal echo study done at AIMS
cic and LSCS, Overt hypothyroidism, with 25 KOCHI. Study suggestive of
Vascular weeks current pregnancy, detected to TOF WITH PULMONARY
Surgery have congenital cardiac anomaly for the ATRESIA with confluent
fetus at 20weeks anomaly scan. Diagnosed pulmonary arteries. This
to have Tetralogy of Fallot, large condition is not incompatible
conoventricular VSD, Pulmonary atresia with life and child will require
with confluent pulmonary arteries, vertical multiple high risk staged
ductus with ductus dependant pulmonary procedures for its survival,
circulation, no coarctation of aorta or and also there is chance of
MAPCAs from Amrita Institute of Medical surgical revision in adulthood
Sciences, Kochi if need arises. Most of these
procedures are done under
Hridyam project with
reasonable survival rates.
However it will be a huge
financial and emotional
burden on parents and family.
After discussing with the
parents, they are not willing
to undergo such an ordeal
and in this situation MTP may
be allowed from the
humanitarian perspective.
6. Opinion by Medical Board for termination of
pregnancy:
a) Allowed: Allowed
b) Denied:
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Justification for the decision: The continuation of
pregnancy is likely to be associated with significant
emotional distress to her mental health.
5. The termination of pregnancy is governed by the Medical
Termination of Pregnancy Act, 1971 (‘Act’, in short) and the rules
framed thereunder. The Act is a progressive legislation that
regulates how pregnancies can be terminated.
6. Section 3 of the Act spells out the conditions to be
satisfied to terminate a pregnancy, which reads as follows:
“S.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 to the provisions of sub-section (4), a
pregnancy may be terminated by a registered medical
practitioner, ―
(a) where the length of the pregnancy does not
exceed twenty weeks, if such medical practitioner, is
or (b) where the length of the pregnancy exceeds
twenty weeks but does not exceed twenty – four
weeks in case of such category of woman as may be
prescribed by rules made under this Act, if not less
than two registered medical practitioners are, of the
opinion, formed in good faith, that―
(i) the continuance of the pregnancy would involve
a risk to the life of the pregnant woman or of grave
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injury to her physical or mental health; or (ii) there
is a substantial risk that if the child were born, it
would suffer from any serious physical or mental
abnormality.
Explanation 1.―For the purposes of clause (a), where
any pregnancy occurs as a result of failure of any
device or method used by any woman or her partner
for the purpose of limiting the number of children or
preventing pregnancy, the anguish caused by such
pregnancy may be presumed to constitute a grave
injury to the mental health of the pregnant woman.
Explanation 2. ― For the purposes of clauses (a) and
(b), where any pregnancy is alleged by the pregnant
woman to have been caused by rape, the anguish
caused by the pregnancy shall be presumed to
constitute a grave injury to the mental health of the
pregnant woman.
(2A) The norms for the registered medical practitioner
whose opinion is required for termination of pregnancy
at different gestational age shall be such as may be
prescribed by rules made under this Act.
(2B) The provisions of sub-section (2) relating to the
length of the pregnancy shall not apply to the
termination of pregnancy by the medical practitioner
where such termination is necessitated by the diagnosis
of any of the substantial foetal abnormalities diagnosed
by a Medical Board.
(2C) Every State Government or Union territory, as the
case may be, shall, by notification in the Official
Gazette, constitute a Board to be called a Medical Board
for the purposes of this Act to exercise such powers and
functions as may be prescribed by rules made under
this Act.
(2D) The Medical Board shall consist of the following,
namely: (a) a Gynaecologist; (b) a Paediatrician; ― (c) a
Radiologist or Sonologist; and (d) such other number of
members as may be notified in the Official Gazette by
the State Government or Union territory, as the case
may be.
(3) In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is
mentioned in sub-section (2), account may be taken of the
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pregnant woman’s actual or reasonably foreseeable
environment.
(4) (a) No pregnancy of a woman, who has not attained the
age of eighteen years, or, who having attained the age of
eighteen years, is a mentally ill person, shall be terminated
except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no
pregnancy shall be terminated except with the consent of
the pregnant woman.”
7. It is also necessary to refer to the Medical Termination of
Pregnancy Rules, 2003, which reads as follows:
“3A. Powers and functions of Medical Board.–For
the purposes of section 3,– (a) the powers of the
Medical Board shall be the following, namely:- (i) to
allow or deny termination of pregnancy beyond
twenty-four weeks of gestation period under sub-
section (2B) of the said section only after due
consideration and ensuring that the procedure
would be safe for the woman at that gestation age
and whether the foetal malformation has substantial
risk of it being incompatible with life or if the child is
born it may suffer from such physical or mental
abnormalities to be seriously handicapped”;
8. The position of law can therefore be summarised thus:
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9. Besides the above statutory safeguards, the Ministry of
Health and Family Welfare, Government of India, has issued a
comprehensive ‘Guidance Note for Medical Boards for
Termination of Pregnancy beyond 20 weeks of Gestation’, dated
14th August 2017. The Note stipulates that it is the
responsibility of the Medical Board to ascertain whether the
foetal abnormality is substantial enough to qualify as either
incompatible with life or associated with significant morbidity or
mortality of the child if born. Determining substantial foetal
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abnormalities should be based on a thorough review of the
patient’s medical records. The Medical Board should conduct
additional investigations as may be necessary. It should base its
decision on concrete medical evidence and expert evaluations,
including reviewing the available documents and performing
additional diagnostic tests to confirm the presence and extent of
congenital abnormalities. The objective of the Note is to ensure
that the decision to terminate the pregnancy is made with the
utmost care and consideration of the potential outcomes and
quality of life of the child.
10. A three-judge Bench of the Hon’ble Supreme Court, in
Suchita Srivastava v. Chandigarh Admn. [(2009) 9 SCC 1],
has held that the right to make reproductive choices is a facet of
Article 21 of the Constitution and that the consent of the
pregnant person in matters of reproductive choices and abortion
is paramount.
11. In XYZ v. State of Gujarat (2023 SCC Online SC 1573),
the Hon’ble Supreme Court held that the Medical Board or the
High Court cannot refuse termination of pregnancy merely on
the ground that the gestational age is above the statutory
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prescription. It is held as follows:
“19. The whole object of preferring a Writ Petition
under Article 226 of the Constitution of India is to
engage with the extraordinary discretionary
jurisdiction of the High Court in exercise of its
constitutional power. Such a power is vested with
the constitutional courts and discretion has to be
exercised judiciously and having regard to the facts
of the case and by taking into consideration the
relevant facts while leaving out irrelevant
considerations and not vice versa.”
12. The Hon’ble Supreme Court in A v. State of
Maharashtra [(2024) 6 SCC 327] has held as under:
” 28. The powers vested under the Constitution in the
High Court and this Court allow them to enforce
fundamental rights guaranteed under Part III of the
Constitution. When a person approaches the court for
permission to terminate a pregnancy, the courts apply
their mind to the case and make a decision to protect the
physical and mental health of the pregnant person. In
doing so the court relies on the opinion of the Medical
Board constituted under the MTP Act for their medical
expertise. The court would thereafter apply their judicial
mind to the opinion of the Medical Board. Therefore, the
Medical Board cannot merely state that the grounds under
Section 3(2-B) of the MTP Act are not met. The exercise of
the jurisdiction of the courts would be affected if they did
not have the advantage of the medical opinion of the board
as to the risk involved to the physical and mental health of
the pregnant person. Therefore, a Medical Board must
examine the pregnant person and opine on the aspect of
the risk to their physical and mental health.
29. The MTP Act has removed the restriction on the
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length of the pregnancy for termination in only two
instances. Section 5 of the MTP Act prescribes that a
pregnancy may be terminated, regardless of the gestational
age, if the medical practitioner is of the opinion formed in
good faith that the termination is immediately necessary to
save the life of the pregnant person. Section 3(2-B) of the
Act stipulates that no limit shall apply on the length of the
pregnancy for terminating a foetus with substantial
abnormalities. The legislation has made a value judgment
in Section 3(2-B) of the Act, that a substantially abnormal
foetus would be more injurious to the mental and physical
health of a woman than any other circumstance. In this
case, the circumstance against which the provision is
comparable is rape of a minor. To deny the same enabling
provision of the law would appear prima facie
unreasonable and arbitrary. The value judgment of the
legislation does not appear to be based on scientific
parameters but rather on a notion that a substantially
abnormal foetus will inflict the most aggravated form of
injury to the pregnant person……..
xxxxxxxxx xxxxxxxxx xxxxxxxxx
xxxxxxxxx
32. This highlights the need for giving primacy to the
fundamental rights to reproductive autonomy, dignity and
privacy of the pregnant person by the Medical Board and
the courts. The delays caused by a change in the opinion
of the Medical Board or the procedures of the court must
not frustrate the fundamental rights of pregnant people.
We therefore hold that the Medical Board evaluating a
pregnant person with a gestational age above twenty-four
weeks must opine on the physical and mental health of the
person by furnishing full details to the court”.
13. As far as the present case is concerned, Ext.P1,
together with Medical Board reports, it is clear that there exists
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considerable reason that the baby will be born with substantial
foetal abnormalities if born alive. Further the Medical Board has
opined that if the pregnancy continues and a baby is born,it
would suffer from serious cardiac abnormalities which may
require surgery and follow up treatment. The foetus suffers from
fatal abnormalities including issues to the heart like large Cono
Ventricular Septal Defect(VSD) associated with double outlet
right ventricle. It was also found that the foetus was also
diagnosed with pulmonary atresia, which is congenital heart
defect where the pulmonary valve is blocked preventing blood
flow from the right ventricle to the lungs. There was also
absence of the aortic arch as the actions of the same is generally
considered abnormal. The foetus was also diagnosed with
Tetralogy of Fallot which means that the baby’s heart over grows
during pregnancy.
14. Consequently, there is a decisive basis to hold that
the first petitioner is eligible to get her pregnancy terminated,
irrespective of the gestation age, in view of Section 3 (2-B) of the
Act, as the foetus presents with substantial abnormalities that
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the Medical Board has confirmed.
15. Learned counsel for the petitioners submits that if the
baby is born alive, the parents are ready and willing to bear the
risk of taking care of the patient and baby and also ready to meet
all the expenses.
16. After an elaborate consideration of the facts, the
materials on record and the well-settled principles of law on the
subject, especially considering the recommendations of the
Medical Board, I am of the view that denying termination may
only delay the inevitable and extend the suffering of the family.
The writ petition is to be disposed of by directing the third
respondent to terminate the first petitioner’s pregnancy.
In the aforementioned circumstances, I dispose of the
writ petition by passing the following directions:
1. The third respondent shall take immediate measures
for constituting a Medical Team to conduct the
termination of the first petitioner’s pregnancy, on
production of a copy of this judgment.
2. The Medical Team shall, in their discretion and best
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judgment, adopt the best procedure recommended in
the medical science to terminate the pregnancy and
save the life of the first petitioner.
3. The petitioners shall file an undertaking authorising
the third respondent to terminate the pregnancy at
their risk and costs.
4. If the foetus is born alive, the hospital shall render all
the necessary assistance, including incubation and
treatment at any super-speciality, to ensure that the
foetus survives. The baby shall be offered the best
medical treatment, and the petitioners shall take full
responsibility and bear the expenses for the baby.
5. Before conducting the termination of the pregnancy,
the Medical Board shall reconfirm the fetal
abnormalities by performing a final scan.
6. The parties shall appear before the Superintendent of
Medical College Hospital, Kottayam on 17.02.2026
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
STB
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APPENDIX OF WP(C) NO. 5249 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE REPORT NO. 2945950 DATED
3/2/2026 ISSUED BY AIMS, EDAPPALLY
Exhibit P2 TRUE COPY OF THE OP CARDS ISSUED BY
ANTENATAL CLINIC AND FAMILY PLANNING CLINIC
OF THE 3RD RESPONDENT DATED 4/2/2026
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
4/2/2026 SUBMITTED BY THE PETITIONERS BEFORE
THE 3RD RESPONDENT
Exhibit P4 TRUE COPY OF THE JUDGMENT IN X VS. UNION OF
INDIA AND OTHERS 2025: KER: 20965 OF THIS
HON’BLE COURT
