Terminating 28 week old fetus: Uttarakhand HC gives nod

Uttarakhand: Upholding the plea made by the father of a rape victim, the High court Judge Justice Alok Kumar Verma ruled in favor of her on February 4, granting the termination of a 28 week-old fetus.

The father of a 16 year old rape victim filed a petition in Uttarakhand High Court to allow the termination of the 28 weeks pregnancy of his daughter. An FIR was lodged on 12.01.2022, District Chamoli under Section 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. After the medical examination she was advised Obstetrical Ultrasound (Sonography) test, which confirmed that she had a Single Live Intrauterine Fetus of 27 weeks 4 days (+) 15 days.

According to the report of the Medical Board, the pregnancy was found to be of 28 weeks 5 days. The report concluded that considering the risk to the mother and fetal viability, it is not advisable to terminate the pregnancy at this gestational age. The opinion of the members of the Medical Board is that there is a substantial risk to the life of the petitioner, if the medical termination of the pregnancy is conducted. They further submitted that at this stage of the pregnancy, the baby can be born with many anomalies.

The counsel appearing for the petitioner, had submitted that the Hon'ble Supreme Court, in A. vs. Union of India, (2018) 14 SCC 75, has permitted termination in a case where the gestational age was 25-26 weeks, and, in Sarmishtha Chakraborty and Another vs. Union of India, (2018) 13 SCC 339, the Hon'ble Supreme Court permitted termination of the pregnancy when the gestational age was 26 weeks.

In Murugan Nayakkar vs. Union of India, 2007 SCC On-line SC 1092, the Hon'ble Supreme Court has allowed medical termination of pregnancy beyond the statutory outer limit prescribed in the Act considering the fact that the victim was 13 years old and in trauma, even though the Board stated that termination will have equal danger for the mother.

The counsel appearing for the petitioner, again submitted that during the procedure of the termination, if it is found that there is any risk to the life of the petitioner, then discretion can be applied to cancel the procedure for medical termination of pregnancy.

The court made the decision that there is a right to terminate pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act (the Medical Termination of Pregnancy Act).

In Suchita Srivastav and Another vs. Chandigarh Administration, (2009) 9 SCC 1 and in Meera Santosh Pal vs. Union of India, (2017) 3 SCC 462, the Hon'ble Supreme Court held that a woman's right to make reproductive choices is also a dimension of "personal liberty" as understood under Article 21 of the Constitution of India. Further, in Meera Santosh Pal (supra), the Court permitted the petitioner to terminate pregnancy and observed that the overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it.

The court observed right to life means something more than survival or animal existence. It would include the right to live with human dignity. The father of the minor petitioner has expressed that the petitioner is not in a position to continue the pregnancy and if the petitioner is not permitted to terminate her pregnancy, there is possible grave injury to her physical and mental health.

The court stated that under Explanation 2 to Section 3(2) of the Act, there is a presumption. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

However, the court concluded that if the petitioner is compelled to continue with her pregnancy, it would infringe her life to live with human dignity, guaranteed under Article 21 of the Constitution of India. Therefore, in the present facts and circumstances, the Court considers it appropriate in the interest of justice to permit the petitioner to undergo medical termination of her pregnancy under the provisions of the Act with the following directions :-

(i) The medical termination of pregnancy of the petitioner should be carried out by a senior most Gynecologist under the guidance of the Medical Board within 48 hours from the production of a copy of this order before the Chief Medical Officer, Chamoli.

(ii) During the procedure of medical termination, if they find any risk to the life of the petitioner, they have the discretion to cancel the said procedure.

(iii) The Medical Board shall maintain a complete record of the procedure of the termination of the pregnancy of the petitioner. The Medical Board shall collect the tissue and blood sample of the fetus for conducting DNA and other tests.

To view the official judgement, click on the following link: