The Telangana High Court in a recent judgment laid down that the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the woman.
The court observed that Constitutional Courts have the power under writ jurisdiction to direct termination of pregnancy, even when the length of pregnancy is beyond the statutory limit of twenty-four weeks as per the Medical Termination of Pregnancy (Amendment) Act, 2021 (The Act).
Justice B. Vijaysen Reddy observed,
“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.“
The observation was made while permitting a 16 years old rape victim to terminate 26 weeks’ old pregnancy.
The writ petition was filed by xxxx, who is 16 years of age, through her mother and natural guardian seeking direction for termination of her pregnancy medically, as per the provisions of Medical Termination of Pregnancy Act, 1971.
A member of the petitioner’s extended family sexually exploited her without her consent and then threatened her with dire consequences if she divulged any details of the assault. Later, when her health started failing, she was sent for a medical checkup, in which she was diagnosed pregnant and the foetus was 25 weeks old.
The hospital did not terminate the pregnancy of the petitioner as the foetus was beyond the gestation period of 24 weeks and there is a restriction under the statue for terminating pregnancy, if the gestation of foetus is more than 24 weeks.
Advocate Sravya Katta, counsel for the petitioner, submitted that a woman’s right to make a reproductive choice is a dimension of personal liberty as deducted from Article 21 of the Constitution of India. It is important to recognize that a woman has a reproductive choice to either procreate or abstain from procreating. A woman has self-rule over her body and the right to life and individual freedom under A.21 of the Constitution of India envelops the option to settle on regenerative decisions. Infringement of right to life of a rape victim outweighs the right to life of the child in womb.
Furthermore, there is a threat to the physical and mental health of the petitioner who is of such a tender age. The formation of foetus is not a choice but is purely circumstantial.
Section 3 of Medical Termination of Pregnancy Act (Post Amendment in 2021)
Section 3 of Medical Termination of Pregnancy Act, 1971 deals with scenarios when pregnancies may be terminated by registered medical practitioners. As per the Medical Termination of Pregnancy (Amendment) Act, 2021, the upper limit for medical termination of pregnancy is 24 weeks as opposed to 20 weeks which was the position before the amendment. 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’s ruling
The court relied upon the decision in xxx v. Union of India, 2021 SCC OnLine Ker 808, in which the High Court of Kerala allowed the termination of pregnancy even when the period of gestation had reached 26 weeks taking into account the traumatic experience of the victim and the possible genetic disorders of the unborn child. It held that when the period of gestation exceeds the period prescribed in Sections 3 and 4 of the Medical Termination of Pregnancy Act, 1971, medical termination can be carried out by an order of court.
Justice B. Vijaysen Reddy observed that there is a presumption that anguish caused to rape victim by pregnancy shall be presumed to constitute a grave injury to mental health of pregnant woman. 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.
“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 allowed the Writ Petition and directed the hospital to terminate the pregnancy with all precautionary measures within a period of 48 hours.
Case Title: xxxx v. State of Telangana
Citation: 2022 LiveLaw (Tel) 2