Foetus' life could not be placed at higher pedestal than mother's: HC permits termination of 26 weeks pregnancy

Hyderabad: The life of the foetus or a to-be-born child cannot be placed at higher pedestal than that of the life of the woman, observed the Telangana high court in a recent judgment.

It noted that constitutional courts have power under the writ jurisdiction to direct pregnancy termination even when the pregnancy time period goes beyond the statutory limit of twenty-four weeks as per the Medical Termination of Pregnancy (Amendment) Act, 2021 (The Act), reports the Live Law.

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"A woman has right to make a choice to carry pregnancy, at the same time, it is her right not to carry pregnancy, however, subject to conditions and restrictions enumerated under the provisions of the Act of 1971," noted Justice B. Vijaysen Reddy.

The court was hearing a writ petition filed by a 16 year old survivor of rape, through her mother and guardian, who sought to terminate her 26 weeks' old pregnancy medically according to the provisions of the Medical Termination of Pregnancy Act, 1971.

A member of the minor's extended family had sexually assaulted her and had threatened her with consequences if she told anyone about the rape. When her health started deteriorating, she went for a medical checkup where she was reported pregnant with the foetus being 25 weeks old, reported the Live Law.

The hospital refused to terminate the pregnancy, as the foetus was beyond the gestation period of 24 weeks. However, under the statue, there is a restriction for terminating pregnancy, if the gestation period of foetus is more than 24 weeks.

The counsel for the petitioner, advocate Sravya Katta submitted that a woman's right to make a reproductive choice is a dimension of personal liberty under Article 21 of the Constitution of India. A woman's right to make a reproductive choice to either procreate or abstain from procreating has to be recognized.

The advocate submitted that a woman has self-rule over her body and the right to life and individual freedom under article 21 of the Constitution of India envelops the option to settle on regenerative decisions and infringement of right to life of a rape victim outweighs the right to life of the child in womb.

Further they added that there is a threat to the physical and mental health of the petitioner who is of a tender age, with the formation of the foetus being purely circumstantial and not a choice.

Section 3 of Medical Termination of Pregnancy Act, 1971, talks about sections when pregnancies may be terminated by registered medical practitioners. According to the Medical Termination of Pregnancy (Amendment) Act, 2021, the upper limit for medical termination of pregnancy is 24 weeks which was 20 weeks before the amendment took place in 2021. As per the act, the termination can take place when a pregnancy occurs as a result of failure of any contraceptive, or where pregnancy has been caused by rape or sexual assault, or there are substantial foetal abnormalities.

The court relied upon the judgment in xxx v. Union of India, 2021 SCC OnLine Ker 808 where the Kerala High Court had permitted the termination of pregnancy even when the period of gestation had reached 26 weeks considering the traumatic experience of the victim and the possible 'genetic disorders' that the child might face. The court had observed that a medical termination could be performed by the court's order even if the period of gestation exceeds the period prescribed in Sections 3 and 4 of the Medical Termination of Pregnancy Act, 1971.

The court observed, "In the case of rape, the anguish on account of the pregnancy is statutorily regarded as a grave injury to the mental health of the pregnant woman, sufficient to terminate the pregnancy on the basis of opinion of two registered medical practitioners." It said that even though the gestational age of foetus is 26 to 27 weeks, the petitioner at this age is not in a position to bear the child physically, mentally and financially.

It said, "This Court is of the opinion that the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the petitioner. The dignity, self-respect, healthy living are facets of right to life and personal liberty enshrined under Article 21 of the Constitution of India, which also include right of a woman to make a choice of pregnancy and terminate pregnancy, in case, where pregnancy is caused by rape or sexual abuse or for that matter unplanned pregnancy, subject to reasonable restrictions under law."

The court permitted the survivor to terminate her pregnancy. The bench said, "the petitioner is permitted to subject her daughter to medical termination of pregnancy as any delay in undertaking the termination will involve serious consequences affecting the girl as well as the lift of the baby in the womb' there shall be a direction to the Superintendent of {government Medical College Hospital, Thiruvananthapuram to see that the termination of pregnancy of the minor 9irl, the daughter of the petitioner, is undertaken by competent doctors under his/her supervision, at the earliest point of time, if possible today itself in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971, its rules and all other rules' regulations and guidelines prescribed for the purpose."

Directing the hospital to take all possible precautionary measures to terminate the pregnancy within 48 hours, it noted, "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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