‘Ultimate decision of woman whether to opt for abortion or adoption’: Allahabad HC directs State to facilitate discreet delivery and adoption of 15-year-old minor girl’s unborn child

Allahabad High Court: In a writ petition filed by a 15-year-old minor girl seeking permission to medically terminate her pregnancy at 32 weeks but later deciding to put the child up for adoption, the Division Bench of Shekhar B. Saraf and Manjive Shukla, JJ., stated that the final decision was ultimately up to the woman, whether to terminate the pregnancy or proceed with it and put the child up for adoption., and issued the following directions:

1. The State was directed to bear all expenses with regard to delivery of the child.

2. The District Magistrate, Meerut, was directed to be involved in the process to ensure that all the medical and ancillary expenses of the petitioner and her family were borne by the State, which would be inclusive of their travel and stay in Meerut.

3. The Director of the Central Adoption Resource Authority (‘CARA’) was directed to take appropriate steps in tandem with the applicable provisions of law to facilitate and expedite the adoption process.

4. All authorities involved were directed to maintain complete secrecy, so as to ensure complete privacy of the petitioner and her family, and their identity not to be revealed, in any manner whatsoever.

5. Counsels appearing for both parties were directed to keep the Court informed of any developments that may take place and were granted liberty to seek further instructions to facilitate a smooth and efficient adoption process.

Background

The petitioner, a 15-year-old minor girl, was living at her maternal uncle’s residence. An FIR under 363¹ of the Penal Code, 1860 (‘IPC’) was filed by her maternal uncle alleging that the petitioner had been enticed away by a man.

The petitioner was found on 28-06-2024 and during the course of investigation, it was discovered that the petitioner had been subjected to sexual intercourse as a result of which the case was converted under Sections 363 and 376² of the IPC and Section 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’). It was further revealed by ultrasonography that the petitioner was 29-weeks pregnant at time.

Keeping in view the urgent nature of the matter and taking a humanitarian approach as the petitioner was a minor, respondent 3 was directed to immediately constitute a 5-member team (‘medical team’) headed by the Department of Obstetrics and Gynaecology, Department of Anaesthesia and Department of Radio Diagnosis to examine the petitioner and submit a report before the Court within 3 days. The team was also directed to carry out an age verification test on the petitioner and inform the Court of the same.

When the matter was placed before the Coordinate Bench of the Court, the report by the medical team was found to be unclear with regard to the medical termination of pregnancy, and consequently directed respondent 3 to submit a fresh report assessing whether it was medically feasible and advisable to terminate such pregnancy.

Upon perusal of the fresh report issued by the medical team, the Court found the same to be inconclusive and passed an order further directing the Chief Medical Officer, Prayagraj (‘CMO’) to constitute a Medical Board of five well-reputed doctors including doctors from the Department of Obstetrics & Gynaecology, Department of Neonatology and Department of Psychiatry to examine the petitioner physically as well as mentally. The Medical Board was also directed to counsel the petitioner and her parents and advise them of the possibilities of adoption and the privacy thereof that would be maintained in the event the petitioner agreed to carry the child to full term.

As per the CMO, the pregnancy would have an impact on the physical and mental well-being of the petitioner, and that the termination of the same was not without serious complications being posed to the petitioner. The report further stated that age was a relevant factor in determining health of the petitioner in such a case.

The Court explained to the petitioner and her relatives the risks involved in the termination due to the later stage of pregnancy, and upon being made to understand the risks to the life of the petitioner and future risks with regard to losing the ability to be pregnant, the petitioner subsequently opted to deliver the child instead of terminating the said pregnancy. The petitioner and her mother were both of the opinion that they would put the child for adoption post parturition.

Decision and Analysis

Upon hearing the parties and examining the records, the Court referred to R v. Union of India³, wherein the issue was whether to allow the termination of a 32-week pregnancy, and by balancing the best interests of the mother and foetus, the Court had directed that upon delivery, the child would be given up for adoption, ensuring that the health of the mother was not compromised whilst also making an attempt to further the rights of the foetus.

The Court further referred to A (Mother of X) v. State of Maharashtra ⁴, wherein the Court ensured that the rights of the victim were placed on the highest pedestal, keeping in mind the pregnant girl’s Right to Bodily Autonomy enshrined under Article 21 of the Constitution, and issued appropriate directions to the State regarding the adoption process that was to follow after.

The Court stated that, “A woman’s decision in whether or not to go ahead with the termination of her pregnancy is a decision that is to be taken by no one but herself. This is primarily based on the widely acknowledged idea of bodily autonomy. Here, her consent reigns supreme.”

The Court said that it was the duty of the State to ensure that adoption of the child was carried out with complete privacy, in an efficient manner and that the ‘best interests of the child’ principle was followed. The Court issued directions to the State to ensure the process from delivery to the adoption of the child was carried out smoothly and with utmost discretion and to further ensure that the ‘best interests of the child’ principle was followed.

The Court further impleaded the Principal & Medical Superintendent of the Lala Lajpat Rai Memorial Medical College, Meerut, the District Magistrate, Meerut and Director of CARA in the writ petition.

The matter has been scheduled to be heard on 28-08-2024.

[X (Minor Victim) v. State of U.P., 2024 SCC OnLine All 3921, decided on 24-07-2024]

Advocates who appeared in this case :

Advocates for the petitioner: Ratan Chaudhary, Siddharth Chaudhary, Advocates

Advocate for the State: Birendra Prasad Shukla, Standing Counsel

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