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Kerala High Court Allows Termination Of Minor Rape Survivor's 24 Weeks Pregnancy

Hannah M Varghese
18 July 2022 1:15 PM GMT
Kerala High Court Allows Termination Of Minor Rape Survivors 24 Weeks Pregnancy
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The Kerala High Court recently came to the assistance of a minor rape survivor by paving the way for her to undergo medical termination of her pregnancy which was a result of the sexual assault committed on her.In case the newborn is born alive, Justice V.G Arun directed the State and its agencies to assume full responsibility and offer medical support and facilities to the child, if...

The Kerala High Court recently came to the assistance of a minor rape survivor by paving the way for her to undergo medical termination of her pregnancy which was a result of the sexual assault committed on her.

In case the newborn is born alive, Justice V.G Arun directed the State and its agencies to assume full responsibility and offer medical support and facilities to the child, if the petitioner was not ready to assume responsibility. 

"This Court is now faced with the question whether to permit the prayer for termination of pregnancy by exercising the discretion under Article 226 and thereby, relieve the girl of the physical and mental stress or to deny permission, adopting a rigid interpretation of the statutory provisions. Having given careful thought to the vexing question, I deem it appropriate to lean in favour of the minor girl, rather than sticking to the strict letter of law."

The Court was considering the plea filed by a parent seeking termination of pregnancy of their 15-year-old daughter who was pregnant by 24 weeks. 

The Medical Termination of Pregnancy Act provides an outer limit of 24 weeks, beyond which termination is not permissible. Similarly, as per Section 312 of IPC, causing a miscarriage is a punishable offence, if not caused in good faith for the purpose of saving the life of the woman. However, an exception to this provision is carved out by Section 3(2) of the Medical Termination of Pregnancy Act.

Section 5 also lays down that when the registered medical practitioner is of opinion that the termination is immediately necessary to save the life of the pregnant woman, it may be permitted.

The report of the Medical Board suggested that the pregnancy had passed the legal limit of medical termination of pregnancy of 24 weeks and that at this gestational age the chance of neonatal survival was about 30%. 

The report also mentioned that if the baby survives, it may require 2-3 months of NICU care since morbidity was high. It further said that it was not ethical to withhold resuscitation of the newborn if born alive and that the hospital was ethically and medico legally bound to give care to the newborn.

Therefore, the question that remained was what was to be done if the baby survives.

Advocates M.Kabani Dinesh and C.Anchala appearing for the petitioner asserted that the issue was considered by the Bombay High Court in XYZ v. Union of India & Ors (MANU/MH/0565/2019). 

Considering that each days delay will add to the victim's agony, and being of opinion that the directions issued in the said decision would ensure that the child is not abandoned at birth, the Court issued the following directions:

(i) The petitioner is permitted to get the victim girl's pregnancy terminated at a Government Hospital.

(ii) On production of this order, the Superintendent of the hospital shall take immediate measures to constitute a medical team for conducting the procedure.

(iii) The petitioner shall file an appropriate undertaking, authorising to conduct the surgery at her risk.

(iv) If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment available so that it develops into a healthy child;

(v) If the petitioner is not willing to assume the responsibility for the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, as may be reasonably feasible, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.

Case Title: Y v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 356

Click Here To Read/Download The Order

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