‘Bodily autonomy’: Court overrules 24-week abortion limit for 15-year-old rape survivor

The petitioner had approached the court seeking permission to terminate her pregnancy since the current gestational age of the petitioner is beyond the permissible limits under the MTP Act, 1971.

Justice Mini Pushkarna allowed a minor to terminate her pregnancy.

15-year-old, rape survivor

Advocates Anwesh Madhukar and Pranjal S for the petitioner submitted that the present petition has been filed by the petitioner, who is a minor girl of 15 years of age, through her father.

It was contended that the petitioner is a survivor of rape, and is currently at an approximate 26-28 weeks gestational period. The petitioner, as well as her father, wishes to terminate the pregnancy, since the continuation of the same would result in grave mental injury to the petitioner. 

The counsel argued that the petitioner, being a rape survivor, if forced to continue this pregnancy, could cause severe mental trauma and violate her fundamental right to life and personal liberty under Article 21 of the Constitution. Therefore, the court should allow her to terminate her pregnancy.

‘Termination allowed’

Taking into consideration the desire of the minor as well as her father to terminate the pregnancy and the opinion of the Medical Board of AIIMS, New Delhi, this court deems it fit to allow the prayer of the petition to medically terminate the pregnancy.

The court permitted the petitioner to get herself admitted at AIIMS, New Delhi, on the strength of this order for medical termination of her pregnancy, and directed that the procedure for termination of pregnancy be carried out by a team of competent doctors in accordance with the provisions of the MTP Act and the relevant Rules and Regulations and Guidelines prescribed for the aforesaid purpose. 

The court said that the complete record of the procedure, performed upon the minor for termination of said pregnancy, should be maintained by the Medical Board, and directed AIIMS, New Delhi, to preserve the tissue of the foetus for DNA testing, which would be required with reference to the criminal case which stands registered. 

Court’s directions 

• The Government of NCT of Delhi (GNCTD) should bear all the expenses necessary for the termination of the pregnancy of the minor in question, and her stay at the hospital during such period. 
• The expenditure towards the post-operative period should also be borne by the state.
• In case the child is born alive, the Medical Superintendent, AIIMS, New Delhi, in conjunction with the state authorities, must ensure that medical support is provided.
• The hospital should also provide every possible and feasible assistance, is offered to such a child, and the child shall be kept in an incubator.
• Intimation in this regard should be given to the concerned Child Welfare Committee (CWC), and as and when so required, further directions should be sought from CWC. 
• As per the wish of the minor and her father, such a child should be given in adoption as per the prescribed procedure 

‘Mental injury and trauma’

The court held that although the MTP Act does not provide for abortion over the gestational age of 24 weeks, the extraordinary jurisdiction of the constitutional courts can be invoked for termination of pregnancy in cases of rape, as in such cases, grave mental injury and trauma are inflicted upon the mind of the minor.

Citing the Supreme Court, that a mere clinical description of pregnancy cannot capture the profound physical and psychological consequences of forcing a woman to carry an unwanted pregnancy to term, the court allowed the petitioner’s plea.