The High Court of Kerala on 26th of November 2020 gave a significant judgement in relation to abortion for a minor rape victim. Hon’ble Justice P.V. Asha meticulously proceeded in this Writ Petition.
Background:
The petition was preferred by the mother of the victim of rape, a minor girl aged 13.
As a result of the rape the victim had fallen 20 weeks pregnant, and the continuation of her pregnancy would be critical to her health and contrary to her interest.
The Crime under the POCSO Act had been registered earlier and a separate proceeding was going on in regards to the same. The current petition was filed on the 7th of November 2020, using an ultrasound scan report, which had detected the pregnancy.
It was pleaded before the court that the girl is not mentally prepared to accept the pregnancy and that there is high risk of obstetric complications in case of continuation of pregnancy as it is a result of subject to sexual assault.
The matter came up on admission on 24th of November, when the court passed an interim order directing the Superintendent of Medical College Hospital, Pariyaram, to constitute a medical board including a psychiatrist to assess the situation.
Points given by the court for assessment:
1. Whether the continuation of the pregnancy would risk the life or cause grave injury to the physical and mental health of the pregnant victim child;
2. Whether there is a substantial risk if the infant is born, would suffer from mental or physical disability, or be seriously disabled;
3. Taking into consideration the advanced stage of pregnancy, there would be a danger in terminating the delivery;
4. The medical procedure to best terminate the delivery and the possibility to the infant being born alive in the process;
5. The wishes of the pregnant victim child as regards in the future course of action relating to her pregnancy;
6. Any other related matter.
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Submission from the Board:
The board consisted of prominent members of the Hospital such as the Dr. Principal, Dr. Medical Superintendent, Doctors of OBG, and Doctor for Forensic Medicine, and a Psychiatrist. It was one of the OBGs on this team that had detected the pregnancy.
The medical board came up with the following assessment:
1. As the victim is aged only 13 years, continuation of her pregnancy would be detrimental to her physical and mental health.
2. Since the period of pregnancy has gone up beyond 20 weeks (21 weeks and 6 days at this point), the usual medication or mechanical induction from the private areas could not be done. The termination would have to be done by induced pregnancy as a normal delivery.
3. Due to the stage of pregnancy, in case the victim’s body won’t respond to induced pregnancy, it could be surgically terminated.
4. The fetus showed no abnormalities; however, in the cases of the child being born alive, survival chances were remote. Resuscitation is only attempted if birth is after 24 weeks of pregnancy.
5. Due to the age of the victim, it was declared by the psychiatrist that continuation of the pregnancy would lead to serious physical trauma and termination was suggested. The risks for complications consanguinity (same ancestor) have to be seen.
6. The victim wished to terminate the pregnancy.
Decision of the Court:
The Court has meticulously dealt with various aspects of the case to support its decision. The fact that the victim, a child of 13 years herself, is at high risks from all angles due to this pregnancy. Further, the pregnancy was a result of rape and is a mentally traumatic situation.
Further, the Court also looked at various precedents where termination of pregnancy was allowed beyond the legal limits.
The Court allowed the termination of pregnancy, stating that the victim is not prepared to deliver a child in this situation as she had already gone through enough traumas and stress and such will affect her normal life.
It also added that in case the baby was delivered alive, it will be a duty to take care of it properly, providing all necessities for a chance to a healthy life.
The Court ordered for the petitioner and her minor daughter to be helped with all necessities and to be in the hospital for proceeding with the needful immediately on the same day or at the maximum, the next day. It also ordered to take a DNA sample of the fetus for evidence in the other criminal proceeding.
Story by Sai Kulkarni- Intern
