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'Right To Make Reproductive Choices A Facet Of Personal Liberty Under Art 21' :Kerala HC Allows Abortion For 14 Year Old Rape Survivor [Read Judgment]

5 April 2020 5:19 AM GMT
Right To Make Reproductive Choices A Facet Of Personal Liberty Under Art 21 :Kerala HC Allows Abortion For 14 Year Old Rape Survivor [Read Judgment]
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The High Court of Kerala has allowed the termination of 24-week long pregnancy of a 14 year old rape survivor.

Terming it a "difficult and disheartening situation", a division bench comprising Justices A K Jayasankaran Nambiar and Shaji P Chaly passed the order after an urgent hearing held via video-conferencing, based on the opinion of the Medical Board that the continuation of pregnancy posed risks to physical and mental health of the adolescent girl.

The Court noted that right to make reproductive choices is a facet of personal liberty under Article 21 of the Constitution.

"...we are of the view that the 'Y''s right to make reproductive choices is also a facet of her personal liberty as understood under Article 21 of our Constitution. The said choice would extend to deciding whether or not to carry her pregnancy to its full term. Although the said right is subject to the restrictions imposed under the MTP Act, in the instant case, we find that the report of the Medical Board justifies 'Y''s decision and besides, she also has the consent of her parents to terminate her pregnancy"

The order was passed in a writ petition filed by the father of the girl. The girl had gone missing nearly five months ago, and a habeas corpus petition was filed in the High Court to trace her. It was only after five months that she could be traced with a 28-year married man at Mangalore.  The man was arrested and booked for offences under IPC and POCSO,

Since the pregnancy had advanced beyond the length of 20 weeks - the statutorily fixed period permissible for legal abortion - the girl's father moved the HC through Advocate Rajit seeking urgent intervention.

Taking note of the urgency of the matter, the bench directed the constitution of a Medical Board within a day to report on the risk of pregnancy on the health of the minor girl.

The Medical Board opined that the  continuation of pregnancy at 14 years definitely would involve risk to the life of the pregnant woman as there is an increased risk of "all obstetric complications including gestational hypertension, anemia, risk of operative delivery and obstetric haemorrhage".

The Board also opined that there is possibility of emotionally unstable personality traits in the patient and that the girl did not appear to have the "maturity required from that of a mother-to-be". Hence, the continuation of pregnancy would involve risks of mental health issues as well, the Medical Board opined.

To be doubly sure of the situation, the bench held a further video-conference with Dr. Ambujam K., Professor & Head of the Department of Obstetrics & Gynaecology, Medical College Hospital, Trichur,  who was also a member of the Medical Board.

The Court observed :

"there are substantial risks to the life of 'Y' as well as to her mental health, if she is allowed to continue with her pregnancy at the young age of 14 years. It is also evident that 'Y' does not possess the maturity required of a prospective mother. At any rate, she does not want to continue with her pregnancy. As far as her baby is concerned, the medical opinion is that there is a substantial risk of physical and mental abnormalities as it is a teenage pregnancy. Equally, if the baby survives the termination of pregnancy at this stage, then too there is a substantial risk of physical and mental abnormalities as to seriously handicap the baby".

The bench then took note of Section 5 of the Medical Termination of Pregnancy Act 1971, which states that the maximum period of 20 weeks prescribed under Section 3 for legally permissible termination of pregnancy will not apply in cases where abortion is "immediately necessary to save the life of the pregnant woman".

"On a deeper analysis of the provisions of Act 1971 quoted above, it would be clear that Section 5(1) of MTP Act, 1971 is a stark exception to Section 3 of the Act, and therefore irrespective of the maximum period of limitation to terminate pregnancy prescribed under Section 3 of the Act, under exceptional circumstances specified under Section 5, the termination can be done. In the circumstances, taking into account the report of the Medical Board extracted above, it is explicit and evident that there is grave mental and physical danger to the life of 'Y'", Justice Chaly observed in the judgment.

While allowing the termination procedure, the Court directed the doctors to take the tissue of the foetus for DNA identification and to maintain the same intact for future purposes, in view of the criminal case pending against the man.

The reported, however, indicated that there was a possibility that the baby may survive the medical termination of pregnancy. Taking note of this, the Court observed :

"If the child is born alive, despite the attempts at medical termination of the pregnancy, the doctors shall ensure that everything, which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose, is offered to such child so that he/she develops into a healthy child".

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