Kerala High Court
Kerala High Court
Litigation News

Right to make reproductive choices is a facet of personal liberty under Article 21: Kerala HC allows minor rape survivor's abortion plea

Meera Emmanuel

The Kerala High Court on Saturday allowed a plea for aborting a 24-week old foetus carried by a 14-year-old rape survivor while keeping in view the reproductive rights of the survivor.

After considering the relevant legal provisions, the findings of a Medical Board and the opinion expressed by a medical expert during a private video conference, the Bench of Justices AK Jayasankaran Nambiar and Shaji P Chaly said,

“… 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.”
Kerala High Court

The Court added that,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 father of the survivor had moved the High Court after a Sessions Court declined to allow the plea for abortion given that the pregnancy had exceeded the permissible 20-week period for abortion under Section 3 of the Medical Termination of Pregnancy (MTP) Act, 1971.

The survivor had eloped with a married man months earlier. Proceedings under the Indian Penal Code and the Protection of Children from Sexual Offences Act were initiated against the man. By the time the custody of the survivor had been restored to her parents, the pregnancy had already advanced beyond the 20-week period.

To decide on the plea for medically terminating the pregnancy, the High Court considered a medical report which stated that there were substantial risks to the survivor’s mental health, given her young age. The Medical Board also told the Court that there were substantial risks that the baby would develop physical and mental abnormalities, for the same reason.

These findings were also supported by the Head of the Department of Obstetrics & Gynaecology of Government medical college, also a member of the Board, during an interaction with the judges over a private video conference.

The Court was further informed that, at any rate, the survivor did not wish to continue with the pregnancy.

In this backdrop, the Court pointed out that Section 5 of the MTP Act also provides for an exception to Section 3, whereby the 20-week window for abortion can be disregarded in exceptional circumstances where the mother’s life is in danger due to the pregnancy.

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’”, the Court said.

To buttress its conclusion, the Court also relied on the Supreme Court’s rulings in Murugan Nayakkar v. Union of India and others (2017) and A v. Union of India and others (2018) as well as the Kerala High Court’s ruling in Ms.X v. State of Kerala and others (2016).

The Court, therefore, issued directions for the expeditious conduct of the procedure for medically terminating the pregnancy.

However, if the baby was to survive the procedure, the Court has emphasised that all possible measures must be taken towards the healthy development of the child. Relying on the Bombay High Court’s ruling in XYZ v. Union of India & Ors (2019), the Kerala High Court said,

“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.”

Kerala High Court

This direction was passed given the Court’s obligation to “strike a balance between the right of ‘Y’ to take all such steps as are necessary to preserve her own life against any danger to it, and the compelling State interest in protecting the life of the prospective child.”

[Read the Judgment]

ABC v UOI and ors - Kerala HC order of April 4.pdf
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