Case BriefsHigh Courts

Telangana High Court: Expressing that, A woman has the right to make choice to carry pregnancy, at the same time, it’s her right not to carry the pregnancy, subject to conditions and restrictions enumerated under the Medical Termination of Pregnancy Act, B. Vijaysen Reddy, J., permitted termination of pregnancy of a 16-year-old girl though the gestation period crossed 24 weeks.

Instant petition was filed by a 16-year-old girl through her natural guardian seeking direction to respondent 4 to terminate her pregnancy medically, as per the provisions of the Medical Termination of Pregnancy Act, 1971 and as amended in 2021.

Factual Background

It was stated that the 16-year-old girl was sexually exploited by one of her extended family members further she was also threatened and emotionally abused with dire consequences.

Due to not keeping good health, she was taken for a medical checkup to respondent 4/hospital and as directed by the said hospital on approaching another hospital she was diagnosed with foetus of 25 weeks.

On enquiry by the parents, petitioner stated that she was threatened with dire consequences and the accused threatened to kill her mother. FIR was registered for the offences under Sections 376 (2) and 506 of Penal Code, 1860 and Sections 6 read with 5 of the Protection of Children from Sexual Offences Act, 2012.

Medical Opinion

It was submitted that there was a threat to the physical and mental health of the petitioner, aged 16 years, as the formation of foetus is not a choice but purely circumstantial, as the pregnancy is the result of sexual assault and rape. The petitioner at her tender age is not in a position to bear the child physically, mentally and financially. Considering the situation of the petitioner, who is in dire need of protection and dependency, she is not in a stage to bear or nourish the foetus.

Law

The upper limit for medical termination of pregnancy prior to the 2021 amendments was 20 weeks, which has been extended to 24 weeks.

Court had directed the Medical Board to submit a report after examining the petitioner.

Analysis and Decision

As per the Medical Board, the gestational age of foetus was 26 to 27 weeks and expected date of delivery was 6-1-2022.

Further, the Medical Board certified that the petitioner was fit for termination of pregnancy, however, it was stated that there may be medical complications like bleeding and petitioner may be subjected to surgical procedure, which required anesthesia.

However, it was noted that under Explanation 2 to Section 3(2) of the Act of 2021, there was a presumption that anguish caused to the rape victim by pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Court stated that,

Though there is restriction under the statute for terminating pregnancy, if the gestation of foetus is more than 24 weeks, it is settled law that the Constitutional Courts are empowered to direct termination of pregnancy.

Adding to the above, Bench observed that if the petitioner is compelled to continue with pregnancy caused by rape, it would infringe her right to life guaranteed under Article 21 of the Constitution of India.

If the petitioner is not permitted to terminate the pregnancy, there is every possibility of the petitioner undergoing severe physical and mental stress, which may have adverse effect on her future health and prospects.

 In Court’s opinion, the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the petitioner.

Right of Woman to make Choice of Pregnancy and Terminate pregnancy

 Dignity, self-respect, healthy living etc., 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.

 Therefore, in view of the above petition was allowed. [xxxx v. Union of India, 2021 SCC OnLine TS 1345, decided on 5-10-2021]


Advocates before the Court:

Petitioner Advocate: Katta Sravya

Respondent Advocate: Namavarapu Rajeshwar Raoassgi

Cabinet DecisionsLegislation Updates

The Union Cabinet has approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971. The Bill will be introduced in the ensuing session of the parliament.

Salient features of proposed amendments:

  • Proposing requirement for the opinion of one provider for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of the opinion of two providers for termination of pregnancy of 20-24 weeks of gestation.
  • Enhancing the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include ‘vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors), etc.
  • Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by the Medical Board. The composition, functions and other details of Medical Board to be prescribed subsequently in Rules under the Act.
  • Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.

The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. The proposed amendments include substitution of certain sub-sections, insertion of certain new clauses under some sections in the existing Medical Termination of Pregnancy Act, 1971, with a view to increase upper gestation limit for termination of pregnancy under certain conditions and to strengthen access to comprehensive abortion care, under strict conditions, without compromising service and quality of safe abortion.

It is a step towards safety and well-being of the women and many women will be benefitted by this. Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy.

In order to increase access of women to safe abortion services and taking into account the advances in medical technology, the Ministry of Health and Family Welfare proposed amendments after extensive consultation with various stakeholders and several ministries.


Cabinet

[Source: PIB]

[Press Release dt. 29-01-2020]