A two Judge Bench of the Supreme Court comprising of Justices Anil Dave and Kurian Joseph allowed a 14 year old rape survivor to terminate her pregnancy if it is necessary to save her life. By allowing her Appeal against the Gujarat High Court Order, Supreme Court had directed that a Panel of Doctors which consisting of Four Gynecologists should examine the girl on July 30. [Read the Gujarat High Court order here]
The Supreme Court has been approached by a 14-year old class X student to exercise her right as a woman to make a dignified choice and abort her 23-week-old foetus.
The girl’s parents submitted in the petition that she should not be forced to undergo physical and mental torture to give birth to the child arising out of rape. They submitted that it is violation of her right to life.
"A woman's right to make reproductive choices is also a dimension of personal liberty under Article 21 of the Constitution. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected," the petition said.
The Petition further contended, "MTP Act is actually an enabling Act, which intended to take away the absolute bar on termination of pregnancy contemplated in the Indian Penal Code, therefore, it has to be construed more in the favour of a women/mother, who is ultimately likely to be affected and suffer".
"The minor survivor is only fourteen years old and is studying in class X. She is not physically or mentally capable of going through the pregnancy. She belongs to a poor family, who is not in position to take proper care of child. The survivor is suffering from, multiple physical and mental problems due to pregnancy." In the event she is not permitted to terminate the pregnancy, she would have to bear the stigma of being an unmarried mother of a child and her complete future would be ruined," it added.
Represented by Advocate Kamini Jaiswal, the survivor said that she could not bear to undergo the “severe psychological, physical and emotional trauma of going through a full term pregnancy and eventually to be in helpless situation either to be unable to raise her child properly or to grieve”.
Delving into the legislative intent of the legislation, the Petitioner has contended that the 1971 Act was enacted in order to end the regressive colonial attitude to make the mother and doctors criminal for abortions. The new law allowed termination of pregnancy, if it was considered a “threat to the woman’s life”. She said the term 'life' here did not merely mean physical health of a pregnant woman, but also social and economic circumstances, physical well being, future life and mental health relevant for her to live her life to the fullest.
Justice Abhilasha Kumari of the Gujarat High Court had earlier turned down the petitioner’s plea for abortion, relying on the Medical Termination of Pregnancy Act, 1971, which allows termination of pregnancy only until 20 weeks' gestation.
As per reports, the girl's father is a manual labourer, and the family's lawyer said they did not have enough money to properly take care of the child. It was alleged that the girl had become pregnant after being drugged and raped by a doctor she visited in February.
She was reportedly threatened by the doctor, and did not speak about it until it was discovered that she was pregnant a couple of months later. The doctor has since been arrested by the Police and is being held in custody.
The High Court had expressed its “sympathy” towards the child by directing the State Government to take care of her medical expenses. It also ordered the Government to pay a compensation of Rs. 1 lakh to her family.
Acknowledging the difficulty of the case, the judge said that despite the trauma of the girl's rape, the child "is also not to blame for being conceived." The Court concluded that the unborn baby is innocent, just like the survivor.
The judgment said, "She, too, deserves to be educated, dream her dreams, and, in times to come, have a home and family of her own, just like any other young girl. Humanity and society should assist, her and others like her, in this regard."
The girl’s attorney, Pradip Bhate, was disappointed in the judge’s decision. He said, “The father of the survivor is a laborer and does not have enough resources to take care of the child to be born. The parents are yet to decide if they want to approach higher forum.”
A similar stand was taken by the Punjab and Haryana High Court in March. Justice A.G. Masih refused to order termination of pregnancy of a 12 year old rape survivor, after a Medical Board comprising of eminent doctors concluded that there was “no imminent danger to the life of the survivor if the pregnancy is continued.” Read the LiveLaw story here.