Gujarat High Court invokes ‘best interest’ theory to allow 25-week pregnancy termination for minor survivor
The Gujarat High Court directed the hospital to ensure that if the baby is alive at birth, it should be "offered the best medical treatment available, so that it develops into a healthy child."
The Gujarat High Court directed the doctors to take the necessary tissue samples for DNA identification by following the scientific practice for DNA identification. (File/ Representational Image) Recognising the plight of a minor rape survivor and prevailing her ‘best interest’, the Gujarat High Court has allowed the plea for termination of her 25-week pregnancy, underscoring the trauma, mental agony and social ostracism attached to it.
Bearing in mind that every day’s delay adds to the survivor’s agony, Justice M R Mengdey issued a direction to a team of senior doctors to examine the applicant and undertake the procedure of surgery on an urgent basis.
The April 6 order allowed the medical termination of the pregnancy considering the expert opinion given by the medical board of GMERS General Hospital, underlining the possible “trauma, mental agony and possible social ostracism” that the minor would have to face.
It would be profitable to refer to the decision of the Supreme Court, wherein ‘the best interest’ theory for the victim is settled, the Gujarat High Court said.
Emphasising that it would fit best for the benefit of the survivor, the Gujarat High Court referred to a decision of the Supreme Court wherein the ‘best interest theory’ for the survivors was settled.
‘Best interest theory’
It is applied in cases that involve the interest of children and their welfare, dictating that the child’s holistic development and welfare is a paramount principle and overrides parental rights and legal technicalities.
Termination of pregnancy ‘allowed’
Taking note of the fact that the applicant’s pregnancy had exceeded 25 weeks, the court directed three senior-most gynaecologists of the GMERS General Hospital, Vadnagar, Mahesana, to examine the applicant, and also a psychologist attached to the said hospital.
The said team of doctors was directed to examine the applicant and, after interacting with her, carry out the procedure on an urgent basis, along with other required doctors, such as a physician and an anaesthetist, subject to consensus on safety.
Medical Committee-GMERS
On perusal of the report produced by the committee, it appeared that after examining the applicant, the doctors from different branches and departments, including a gynaecologist, psychiatrist, physician and radiologist, found the applicant’s pregnancy was 25 weeks and 3 days, allowing termination of pregnancy as per the Medical Termination of Pregnancy (MTP) ACT, 1971.
Direction to hospital
The court directed the hospital to ensure that if the baby is alive at birth, it should be “offered the best medical treatment available, so that it develops into a healthy child.”
Besides, if the victim is not willing to assume the responsibility of the baby, the state and its agencies should assume full responsibility and offer medical support and facilities to the child, keeping in mind the best interest of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2005.
The court also directed the doctors to take the necessary tissue samples for DNA identification by following the scientific practice for the same and handing over the samples to the investigating officer.
‘Protect her honour, dignity’
In a similar case, the Karnataka High Court has allowed the medical termination of a minor’s 26-week-old pregnancy as a result of sexual assault and highlighted that the court should not hesitate in protecting her “honour and dignity“.
Justice R Nataraj was hearing the plea of the rape survivor’s father, who sought direction to the government hospital surgeon to permit his minor daughter to undergo termination of her pregnancy.
“The daughter of the petitioner is now carrying a foetus which is 26 weeks and 1 day old. If the petitioner’s daughter is not willing to bear the child, having regard to the fact that she is a 17-year-old girl, this court should not hesitate to protect the honour and dignity of the girl,” the court observed on December 30.
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