Taking an empathetic view of a minor rape victim, the Kerala High Court allowed MTP even though she was 28 weeks pregnant, thereby giving her the right to live with dignity as per the Constitution
The Kerala High Court has said that declining permission to a rape victim to medically terminate her unwanted pregnancy would amount to forcing her to live with the responsibility of motherhood and denying her right to live with dignity which forms a part of the right of life guaranteed under Article 21 of the Constitution.
A single bench of Justice Kauser Edappagath granted relief to the 16-year-old rape victim who did not want to give birth to the child of a man who sexually assaulted her. She approached the High Court through her mother, seeking permission for medical termination of her pregnancy.
It was alleged that the victim, while studying in XI standard, was sexually abused by her 19-year-old lover and became pregnant. A crime was registered in Edakkad Police Station, Kannur, based on intimation from the doctor under Section 376 IPC and Sections 4(1), 3(a), 3(b), 6(1), 5(j)(ii) of the POCSO Act, 2019, and Sections 3(1)(w)(i) and 3(2) (v) of the SC/ST (PoA) Act.
The victim was in her 28th week of pregnancy. Permission to terminate the pregnancy was sought on the ground that its continuation would adversely affect the mental and physical well-being of the victim as well as the child.
Until the 1960s, abortion was illegal in India. The Shantilal Shah Committee was formed in the mid-1960s to examine the need for regulations governing abortion. As a result, the Medical Termination of Pregnancy (MTP) Act, 1971, was enacted legalising safe abortions and protecting women’s health. The law is an exception to the criminalisation of abortion under the Indian Penal Code. The MTP Act permits licensed medical professionals to perform abortions in specific predetermined situations. These include danger to the life or risk to the physical or mental health of the pregnant woman, when pregnancy arises from a sex crime or rape or intercourse with a lunatic woman, etc., and when there is substantial risk that the child when born would suffer from deformities and diseases.
The MTP Act was amended in 2021 to allow abortions up to 24 weeks of gestation, raising it from the previous 20 weeks for “certain categories of women”. These are listed under Rule 3B of the MTP Rules notified under the MTP Amendment Act and include survivors of rape, incest, minors, women experiencing a change of marital status (widowhood or divorce), women with disabilities, women with foetal anomaly and those living in emergency, disaster or humanitarian crisis.
The amended Act allows termination of pregnancies beyond 24 weeks only in cases of foetal anomalies of the child. It sets up State Level Medical Boards to decide if the pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities. The MTP Act also provides for the protection of women’s privacy, confidentiality and dignity in accessing safe abortion services.
The right of a woman or a girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy. Reproductive rights include the right to choose whether and when to have children, the right to choose the number of children and the right to access safe and legal abortions, the bench said.
The constitutional right of women to make reproductive choices as a part of personal liberty under Article 21 was recognised by the Supreme Court in the landmark KS Puttaswamy vs Union of India (2017). The Constitution bench reiterated the position adopted by the three-judge bench in Suchita Srivastava vs Chandigarh Administration (2009) which held that the right of a woman to have freedom to reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 and that she has the sacrosanct right to her bodily integrity.
Following Puttaswamy, a three-judge bench of the Supreme Court, recognising the importance of women’s autonomy over her reproductive choices, in X vs Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, held that every woman has an inherent right to secure safe and legal abortions, thereby ruling out any sort of discrimination based on marital status. It was held that the rights of reproductive autonomy, dignity and privacy under Article 21 give a woman, both married and unmarried, the right to choose whether to bear a child or not. It was observed that decisional autonomy is an integral part of the right to privacy and the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman. This ruling recognises unwanted pregnancy as a life-altering reproductive choice.
More recently, a two-judge bench of the apex court in XYZ vs State of Gujarat & Others (2023) took the view that the woman alone has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo abortion.
When the victim in the present case was medically examined by a medical board constituted by the Government Medical College Hospital, Kannur, as per the direction of the High Court, she was found to be 27 weeks pregnant. The Court noted that as per Section 3 of the MTP Act, termination of pregnancy of a woman where it exceeds 20 weeks but does not exceed 24 weeks can only be allowed in special categories and where the medical practitioners are of the opinion that continuance of such a pregnancy would either involve a risk to the life of a woman or cause grave injury to her physical or mental health.
The categories under which pregnancy can be terminated between 20 and 24 weeks have been prescribed by the MTP Rules, 2021. Clause (a) of the Rules relates to victims of sexual assault, rape or incest and clause (b) relates to minors. In this case, the victim fell under both, i.e., clauses (a) and (b) as she was a minor who is alleged to have been raped.
Though the MTP Act does not provide for termination of pregnancies over the gestational age of 24 weeks except in cases of detection of substantial foetal abnormalities, the Court has wider powers. The extraordinary powers of constitutional courts in this regard have been recognised by the Supreme Court and exercised several times by High Courts, including allowing termination of pregnancies even in cases where it has exceeded 24 weeks.
In A. vs Union of India and Others, the Supreme Court permitted termination in a case where the gestational age was 25-26 weeks. In Meera Santosh Pal vs Union of India (2017), permission for medical termination of pregnancy was granted when it crossed 24 weeks based on medical reports pointing out the risk involved in the continuation of the pregnancy.
In Sarmishtha Chakrabortty vs Union of India (2018), termination of pregnancy was permitted even when the gestational age was 26 weeks in view of the recommendations of the Medical Board. In XYZ vs State of Gujarat, the age of the foetus was almost 27 weeks when the court examined the plea of termination of pregnancy. “Pregnancy outside marriage, in most cases, is injurious, particularly after sexual abuse and is a cause for trauma affecting both physical and mental health of the pregnant woman, the victim. Sexual assault or abuse of a woman is itself distressing and the resultant pregnancy compounds the injury. This is because such a pregnancy is not a voluntary or mindful pregnancy,” the Court observed.
Section 3(2) of the MTP Act provides that if continuance of the pregnancy would cause grave injury to the physical or mental health of the pregnant woman, the pregnancy can be terminated. Explanation 2 of this Section says that where the pregnancy was caused by rape, the anguish caused shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
In the report of the Medical Board, it was pointed out that continuance of pregnancy may be detrimental to the physical and mental health of the victim. The psychiatrist who was part of the Board opined that the continuation may result in severe psychological trauma to the victim. The family of the victim belongs to the Scheduled Caste community. The victim is now housed in a Childcare Home and is not mentally prepared to accept the state of affairs and deliver the child. Moreover, the social isolation of a minor girl before the SC/ST community cannot be ruled out.
Therefore, the Court permitted the victim to undergo medical termination of pregnancy.
—By Shivam Sharma and India Legal Bureau