The Uttarakhand High Court recently held that a rape survivor has a right to terminate her pregnancy, subject to the conditions of the Medical Termination of Pregnancy Act, 1971.
Justice Alok Kumar Verma emphasised that the right to life means more than “survival or animal existence”, and included the right to live with dignity. The Court held,
“There is a right to termination pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act.”
In a nutshell
– Father of 16-year-old rape survivor moved the High Court seeking termination of a 28-week pregnancy;
– Medical Board advised against it since it presented risk to the minor girl;
– Petitioner argued that girl would suffer mental injury if the pregnancy continued;
– Court held that compelling the pregnancy to continue would infringe the girl’s right to live with human dignity guaranteed under Article 21;
– The termination was allowed with a direction to cancel the procedure if any risk to victim’s life was found.
To elaborate
The Court was hearing a plea filed by the father of a minor rape survivor seeking a direction to the State to terminate her 28-week pregnancy immediately.
Counsel for the petitioner submitted that the victim would suffer mental injury if the pregnancy is allowed to continue, and the child would be born with multiple problems.
In compliance with the Court’s previous orders, a Medical Board submitted its report stating that considering the risk to the girl and foetal viability, it was not advisable to terminate the pregnancy at this gestational age.
The Board also appeared before the single-judge and submitted that there was a substantial risk to the life of the petitioner if medical termination was conducted. It was further submitted that at the stage, the baby could be born with several anomalies.
However, the petitioner’s counsel relied on judgments of the apex court where in termination of 25-26 weeks pregnancies were allowed. Justice Verma also considered a judgment of the apex court in Murugan Nayakkar v. Union of India where medical termination beyond the statutory outer limit was allowed, even though the Board stated that termination will have equal danger for the mother, considering the fact that the victim was 13 years old and in trauma.
With this, it was the Court’s stance that termination should be allowed to protect the victim’s right to life. However, the Court passed the following detailed guidelines to ensure the utmost care was taken while conducting the procedure:
(i) The medical termination of pregnancy of the petitioner should be carried out by a senior most Gynecologist under the guidance of the Medical Board, constituted in compliance of the order dated 24.01.2022 of this Court, within 48 hours from the production of a copy of this order before the Chief Medical Officer, Chamoli.
(ii) During the procedure of medical termination, if they find that any risk to the life of the petitioner, they have discretion to cancel the said procedure.
(iii) The Medical Board shall maintain complete record of the procedure of the termination of the pregnancy of the petitioner. The Medical Board shall collect the tissue and blood sample of the foetus for conducting DNA and other tests.
(iv) If baby is born alive, the Chief Medical Officer, Chamoli, the respondent no.2, and, Child Welfare Committee, Chamoli will do the needful in accordance with law.
Advocate Monika Pant appeared for the petitioner while the State was represented by Advocate TS Fartiyal.
Read order here:
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