The Delhi High Court has observed that a minor rape survivor cannot be compelled to carry the pregnancy and deliver the child and has the right to decide it she wants to be a mother or not.

Justice Madhu Jain said that in cases arising out of sexual assault, compelling a survivor to continue with a pregnancy resulting from the assault and fastening upon her the responsibility of motherhood against her will would amount to a “serious impairment of her right to live with dignity.”

The Court held that a woman's right in relation to her own body necessarily includes the right to decide whether or not she wishes to become a mother.

“To compel a survivor of sexual assault to carry and deliver a child conceived as a consequence of the alleged assault may subject her to further and enduring physical and psychological trauma,” the Court said.

The Court made the observations while permitting medical termination of the approximately 30-week-and-5-day pregnancy of a 15-year-old rape survivor.

Justice Jain observed that while the advanced gestational age of the pregnancy required heightened medical caution, it could not by itself deprive the minor of consideration of her rights to bodily autonomy, dignity and reproductive choice.

The Court was dealing with a petition filed by the minor through her guardian seeking termination of her pregnancy, which was alleged to have resulted from sexual assault.

The Medical Board constituted at Lady Hardinge Medical College and Smt. S.K. Hospital had assessed her pregnancy at approximately 30 weeks and 5 days.

At the outset, the Court noted that Section 3 of the MTP Act permits termination beyond 20 weeks and up to 24 weeks in specified categories, which include survivors of sexual assault or rape and minors under Rule 3B of the MTP Rules. The pregnancy in the case, however, had crossed that statutory limit.

On this, the Court held that the fact that a pregnancy has crossed the statutory limit “cannot be viewed in isolation” while exercising constitutional jurisdiction.

It said the Court must consider the peculiar circumstances of each case as well as the fundamental rights of the minor, including her right to dignity, bodily autonomy, reproductive choice and physical and mental well-being.

The Court stressed that while exercising jurisdiction under Articles 226 or 32, constitutional courts must give due primacy to the best interests and welfare of the minor mother-to-be while simultaneously considering the statutory framework under the MTP Act.

“….this Court is of the considered view that the statutory gestational limit under the MTP Act cannot, in the facts of the present case, operate as an absolute bar to the exercise of the constitutional jurisdiction of this Court,” the Court said.

“The Petitioner is a 15-year-old child, the pregnancy is alleged to have resulted from sexual assault, and she has expressed her desire for termination. The advanced gestational age, while requiring heightened medical caution, cannot by itself deprive the Petitioner of consideration of her right to bodily autonomy, dignity and reproductive choice. At the same time, any medical procedure must necessarily remain subject to an assessment of her physical fitness and medical feasibility and to all requisite safeguards,” it added.

Further, while parting with the case, the Court said it could not lose sight of the fact that the petitioner was “first and foremost, a child and a survivor of rape.”

“The pregnancy is a consequence of the crime allegedly committed against her; it cannot become the measure by which her childhood is viewed,” the Court said.

It further observed that a 15-year-old child could not be reduced to the description of a “mother” merely because she had been forced into pregnancy as a consequence of sexual violence. It noted that the minor had also lost both her parents, making her circumstances “all the more difficult.”

“The law may provide remedies and procedures, but no order of a Court can undo the trauma that a child has endured. What the Court can, however, do is ensure that, at a moment of such profound vulnerability, the child is met not with further hardship, but with care, dignity, compassion and the protection of the law,” the Court said.

It added that the Court hopes that the Petitioner is provided every possible support, care and protection so that she may, notwithstanding the circumstances that have been thrust upon her, have an opportunity to reclaim the childhood and dignity which no child should ever be deprived of.

The Court directed Lady Hardinge Medical College and Smt. S.K. Hospital to make arrangements for termination of the pregnancy at the earliest, subject to the minor being found physically fit to undergo the procedure and subject to necessary medical safeguards.

It directed that the procedure be conducted by competent doctors in accordance with the MTP Act, Rules and applicable medical guidelines.

The Court also directed preservation of tissue or foetal material for DNA identification and other purposes connected with the criminal case arising from the alleged sexual assault.

The State was directed to bear all expenses relating to the termination, including the procedure, medicines, investigations, hospitalisation, food and incidental medical requirements.

The Court further directed that, in the event the child was born alive despite the medical procedure, all reasonable and medically feasible measures be taken for its medical care, with the Child Welfare Committee to take further steps in accordance with law.

Title: MINOR S THR HER GUARDIAN B v. STATE GOVT. OF NCT OF DELHI AND ANR

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