Biswanath Somadder, A.C.J. - (1.) The instant appeal has been preferred against a judgment and order dated 29th January, 2019 passed by a learned Single Judge in W. P. No.2462(W) of 2019 (previously numbered as AST No.3 of 2019). By the impugned judgment and order, the learned Single Judge proceeded to dismiss the writ petition filed by the writ petitioners.
(2.) The instant appeal has been preferred by the writ petitioners.
(3.) The appellant / writ petitioner no.1 is the wife of the appellant / writ petitioner no.2. Their marriage was solemnized on 04.02.1999. A female child was born on 20th January, 2004. The appellant / writ petitioner no.1 (hereinafter referred to as "the mother") conceived again in the month of July, 2018 and consulted one doctor by the name of Ranu Debnath on 22nd October, 2018 who advised her to undergo a blood test and ultrasonography. From the test reports, it was ascertained that the mother had acquired a Trisomy 21 pregnancy which would severely affect the foetus. It was also ascertained that there was a single umbilical artery and echogenic foci at the left ventricle. Subsequently, the mother underwent a triple scan and aneuploidy screening. All the doctors who examined the mother suggested that she should terminate her pregnancy. However, by this time, the period of pregnancy had crossed 20 (twenty) weeks. The writ petition was filed on 22nd January, 2019 and on that very day, an order was passed by the learned Single Judge directing the mother to appear before a Medical Board on 24th January, 2019. On the said date, the mother was examined and the Medical Board subsequently placed a report before the learned Single Judge, as directed. The report reads as follows:- "As per Notice No. SSKM/MSVP/125/2019 dated 24th January, 2019 in connection with order of Hon'ble Justice Tapabrata Chakraborty of A.S.T. No. 3 of 2019 in the matter of "Suparna Debnath & Anr. - vs. - State of West Bengal and Ors, the medical board constituted by the Medical Superintendent-cumVice Principal, IPGMER-SSKM Hospital, Kolkata, examined the couple as well as the available relevant documents and came to the following conclusion: Mrs. Suparna Debnath, 39 years, P 1+1 (last delivery by caesarean section) attended a private Gynecologist with history of amenorrhea for 3 (three) months. During routine antenatal testing USG was done on 4th October, 2018, which revealed that the pregnancy was apparently normal and was of 9 weeks duration. 2nd USG was done on 27th November, 2018 and even then no detectable evidence of fetal anomaly was observed. However, on screening she was found to be high risk for chromosomal anomaly (trisomy 21) and for which confirmatory tests were done with amniocentesis and focused ultrasonography. These confirmed it to be a case of Down syndrome along with possibility of esophageal artesia and cardiac abnormality. The radiological evidence suggests possibility of gastrointestinal malformation (esophageal artesia with or without tracheoesophageal fistula) which is amenable to surgical correction, though the baby will have prolonged and complicated neonatal course due to complication of pre-maturity as well as for congenital malformation and the outcome is unpredictable. From the point of view of the obstetricians, termination of pregnancy at 26 (twenty six) weeks+ gestation in a mother with scarred uterus (previous caesarean section), the safe and judicious means of termination should be by caesarean section. In this case, the baby is most likely to be born alive and with the available neonatal care (which is well advanced in many centers) it is likely to survive the early neonatal period. The prognosis of the baby will however, be better if it is delivered near term.";