Telangana High Court has allowed a 16-year-old rape victim to terminate her 26-week pregnancy, saying the life of the foetus cannot be placed at higher pedestal than that of the life of the girl.
Justice B Vijaysen Reddy gave the direction on Tuesday while hearing the girl’s petition filed by through her mother seeking a direction to the Superintendent of Government Maternity Hospital in Koti here, to terminate her pregnancy medically, as per the law.
The dignity, self-respect, healthy living (mental or physical) etc. are facets of right to life and personal liberty enshrined under Article 21 of the Constitution of India, which also include right of a woman to make a choice of pregnancy and terminate pregnancy, in case, where pregnancy is caused by rape or sexual abuse or for that matter unplanned pregnancy, subject to reasonable restrictions under law, the judge said.
The parents of the petitioner (girl) had expressed, through their counsel, that their daughter is not in a position to continue the pregnancy and there is threat to life of their daughter on account of physical and mental stress she was undergoing on a day-to-day basis. Allowing the petition, the court directed the state-run hospital to admit the girl, conduct medical examination and by taking all necessary precautions, terminate her pregnancy medically or through surgical procedure as may be required, within a period of 48 hours. In the affidavit, the petitioner had stated that a member of her extended family sexually exploited her without her consent. She was threatened and emotionally abused with dire consequences. Hence, she did not reveal the incident to anyone in her family. Subsequently, when she was not keeping good health, she was taken for medical check-up where she was diagnosed with foetus of 25 weeks. Currently, the gestational age of the foetus is 26 weeks.
Based on a complaint lodged on September 24 by the girl’s mother, a case was registered under relevant sections of IPC and the Protection of Children from Sexual Offences Act, 2012.
The petitioner submitted that during check-up at a private hospital, the doctors told her that the foetal biometry was 25 weeks as on September 22 and that the petitioner’s health was not in a stable condition and she was advised necessary medical care.
It was further submitted that there is a threat to the physical and mental health of the petitioner, as the formation of foetus is not a choice but purely circumstantial, adding the petitioner at her tender age is not in a position to bear the child physically, mentally and financially. However, the state-run hospital did not terminate the pregnancy of the teenaged girl as she was beyond gestation period and said she needs permission as established by law.
The counsel for the petitioner, had submitted that a woman’s right to make reproductive choice is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choice can be exercised to procreate as well as to abstain from procreating.
Noting that the upper limit for medical termination of pregnancy prior to 2021 amendments was 20 weeks, which has been extended to 24 weeks, the Court on October 1 passed an order referring the petitioner to a Medical Board of the state-run hospital and directed it to conduct medical examination of the girl.
As per the report of the Medical Board, the gestational age of foetus is 26 to 27 weeks and expected date of delivery is January 6, 2022 and it was certified by the Medical Board that the petitioner is fit for termination of pregnancy.
The court observed that if the petitioner is not permitted to terminate the pregnancy, there is every possibility of the petitioner undergoing severe physical and mental stress, which may have adverse effect on her future health and prospects.
It then directed that the termination of pregnancy or surgical procedure, as the case may be, shall be performed by a senior most Gynecologist of the hospital. The hospital was ordered to collect the tissue and blood samples of the foetus for conducting DNA and other tests.
The Investigation Officer, while conducting investigation shall forward the tissue and blood samples of the petitioner to the Forensic Laboratory for DNA and other relevant medical tests.