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Synopsis

The Kerala High Court has affirmed the right of a rape survivor to terminate her pregnancy at 28 weeks, emphasising the preservation of her dignity and autonomy, stating that “a rape victim cannot be forced to give birth to a child of a man who sexually assaulted her.”

Justice Kauser Edappagath, presiding over the case, made the observation in response to a case filed by a 16-year-old rape victim seeking permission for medical termination of her pregnancy. The court said, “Declining permission to a rape victim to medically terminate her unwanted pregnancy would amount to forcing her with the responsibility of motherhood and denying her human right to live with dignity which forms a significant part of the right of life guaranteed under Article 21 of the Constitution.”

The case stemmed from the victim’s pregnancy resulting from sexual assault. Represented by her mother, she petitioned the court for permission to undergo medical termination of her pregnancy, citing grave concerns about her mental and physical well-being.

The distressing incident reportedly occurred while the victim, then studying in the XIth standard, was allegedly sexually abused by her 19-year-old lover. The matter came to light when medical authorities reported the case, prompting the registration a First Information Report (FIR). The accused was charged with violations under Section 376 of the Indian Penal Code and various sections of the Protection of Children from Sexual Offences (POCSO) Act, 2019, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, as the victim belonged to the scheduled caste community.

The plea for termination of the pregnancy was grounded in the argument that its continuation posed significant risks to both the victim's and the child's mental and physical well-being.

The court noted that prior to the 1960s, abortion was illegal in India. In response, the Shantilal Shah Committee was established in the mid-1960s to address this issue. Their recommendations led to the enactment of the Medical Termination of Pregnancy Act, 1971 (MTP Act), which legalised safe abortions and exempted them from the criminalisation under the Indian Penal Code. Licensed medical professionals were authorised to perform abortions under specific circumstances outlined in the MTP Act, including situations where there was a threat to the pregnant woman's life or health, pregnancies resulting from sex crimes like rape or incest, or when there was a significant risk of deformities or diseases to the child if born.

The court highlighted that the MTP Act underwent an amendment in 2021, extending the permissible duration for abortions from 20 to 24 weeks of gestation for certain categories of women. These categories, outlined in Rule 3B of the MTP Rules, included survivors of rape, incest, minors, women experiencing a change of marital status (widowhood or divorce), women with disabilities, women with fetal anomalies, and those living in emergency, disaster, or humanitarian crisis situations. However, termination of pregnancies beyond 24 weeks was allowed only in cases of fetal anomalies, as determined by State Level Medical Boards. “The MTP Act also provides for the protection of women's privacy, confidentiality and dignity in accessing safe abortion services,” the court noted.

The court recognised that “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 to safe and legal abortions. The constitutional right of women to make reproductive choices as a part of personal liberty under Article 21 of the Constitution of India.” This constitutional right, the court highlighted was firmly established by the Supreme Court in the landmark judgment in ‘K.S. Puttaswamy v. Union of India’ [(2017) 10 SCC 1].

The court further emphasised that “Article 21 give a woman, both married and unmarried, the right to choose whether to bear a child or not.”

In the case at hand, the court made the analysis that the victim was medically examined on April 25, 2024, revealing that she was carrying a pregnancy of 27 weeks. The MTP Act allowed termination of pregnancy between 20 to 24 weeks only in special categories, where medical practitioners believed that the continuation of the pregnancy would involve a risk to the life of the woman or cause grave injury to her physical or mental health. Given that the victim fell under both clauses (a) and (b) of the MTP Rules, as she was a minor alleged to have been raped, the court exercised its extraordinary powers to permit termination of the pregnancy, even though it exceeded the statutory limit of 24 weeks.

The court further said “MTP Act provides that if the continuance of the pregnancy would cause grave injury to the physical or mental health of the pregnant woman, the pregnancy can be terminated.”

Recognising the trauma and distress associated with pregnancies resulting from sexual assault, the court emphasised that a rape victim could not be forced to give birth to a child of the perpetrator.

In light of the medical board's report highlighting the detrimental impact of the pregnancy on the victim's physical and mental health, the court granted the relief sought and permitted the petitioner's minor daughter/victim to undergo medical termination of pregnancy.

The court outlined various measures to ensure the well-being of the victim and the unborn child, including :

(i) The medical superintendent to immediately constitute a medical team upon receipt of the judgment to conduct the procedure and terminate the victim's pregnancy.

(ii) The petitioner to submit an undertaking authorising the surgery at her own risk.

(iii) After termination, the medical superintendent to preserve the fetus for medical tests related to the pending criminal case.

(iv) If the fetus is born alive, the hospital to provide necessary assistance, including incubation, and ensure its survival and optimal medical treatment.

(v) If the petitioner declines responsibility for the baby, the State and its agencies to assume full responsibility and offer medical aid in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2015.

(vi) The Child Welfare Committee, Kannur District, to provide assistance to the victim and petitioner during their hospital stay.

 

Cause Title : XXXXXXXXXX v Union of India [WP(C) NO. 16366 OF 2024]