1. The petitioners are the husband and wife, who have been seeking medical termination of 26 weeks plus four days old pregnancy, after having found that the foetus is suffering from holoprosencephaly and a few other complications. The pregnancy of the first petitioner was discovered lately in a scan done on 31.12.2025 at MDC Diagnostic Centre, Thodupuzha as directed by Dr.Sibimol Aji from District Hospital Thodupuzha. Finding anomalies, she was referred to Medical College, Kottayam on 03.01.2026. Ext.P1 is the scan report. The first petitioner went for consultation at Medical College, Kottayam. After going through the reports, the petitioners were informed that the foetus is showing a condition of holoprosencephaly and other complications which may cause the baby, if born alive, to have severe physical and mental disabilities and also serious risk to mother in labour. The petitioners, therefore, seek for a direction to the respondents to permit the first petitioner to undergo medical termination of pregnancy.

2. Heard the learned counsel for the petitioners and the learned Government Pleader.

3. When the writ petition came up for consideration on 09th January, 2026, this Court directed the second respondent to constitute a Medical Board for the purpose of assessing the following:-

                  (i) whether continuance of the first 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.

                  On 13.01.2026, the learned Government Pleader made available to this Court the report of the Medical Board dated 12.01.2026 comprising of Professor & HOD, Professor (CAP) of OBG department, Assistant professor of Pediatric Department, Assistant Professor of Radio Diagnosis, Associate Professor of Neuro Surgery, Professor of Neuro Medicine, Assistant Professor of Psychiatry Department of the Government Medical College Hospital, Kottayam. The conclusion and final opinion of the Medical Board are as follows:-

                  

                  

                                  6. Opinion by Medical Board for      termination    of pregnancy;

                  a)       Allowed         : Allowed

                  b)       Denied:

                  Justification for the decision: The above anomaly will adversely affect the physical and neurological development of fetus and the child will suffer from such physical or mental abnormalities as to be seriously handicapped. Hence MTP is allowed.”

4. 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.

5. 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 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 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."

6. 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”;

7. The position of law can therefore be summarised thus:

                 

8. 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 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.

9. 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.

10. 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 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.”

11. 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 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……..

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                  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”.

12. As far as the present case is concerned, Ext.P1 scan report, together with Medical Board reports, it is clear that there exists considerable reason that if the baby is born alive, it will suffer from serious physical or mental abnormalities. Further the Medical Board has opined that Alobar Prosencephaly is a very severe form of congenital anomaly with very significant disability and the Neurological development and outcome of this baby is very grave. It is also opined that with the findings of severe thinned out parenchyma with holoprosencephaly, severe neurodevelopmental disability is expected and hence termination of pregnancy is advisable. It is further opined that Holoprosencephaly is a very grave congenital anomaly of brain which is usually lethal to the child and even if the child is born, the child is likely to have severe disabilities leading to a nonexistent meaningful survival.

13. 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 the Medical Board has confirmed.

14. 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.

15. 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 second respondent to terminate the petitioner’s pregnancy.

                  In the aforementioned circumstances, I dispose of the writ petition by passing the following directions:

                  1.       The second 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 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 second 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 petitioner 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 Government Medical College , Kottayam on 15.01.2026.