Pregnancy can be terminated if it risks the mother’s mental health : Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY THE 13TH DAY OF JANUARY 2021 23TH POUSHA 1942 WP(C).No.812 OF 2021(B MRS XHAVING COME UP FOR ADMISSION ON 13.01.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING W.P(c).No.812 2021 B W.P.(C) No.8121 B Dated this the 13th day of January 2021 The mother of an unfortunate minor rape victim girl aged 14 years has approached this Court pointing out that the girl is carrying about 20 weeks 8 days of pregnancy and that continuation of her pregnancy would be contrary to her interest. A Crime no.0012 2021 has been registered in Anchalummoodu Police Station in respect of the incident. The Writ Petition is filed producing FIR dated 06.01.2021 and and medical reports Exts.P2 and P3 dated 06.01.2021 and 07.01.2021. As per Ext.P2 report the gestational age was found to be 20 weeks and 3 days as on 06.01.2021. It is stated that victim girl is not mentally prepared to accept the pregnancy and that there is high risk in the event of continuation of her pregnancy as she has been subjected to the trauma of sexual assault W.P(c).No.812 2021 B When the matter came up for admission on 12.01.2021 this Court passed an interim order directing the Superintendent of SAT Hospital Thiruvananthapuram to constitute a medical board including a psychiatrist also and to furnish a report on the following: “(i) Whether the continuance of the pregnancy involves risk to the life of the pregnant child or of grave injury to her physical and mental health ii) Whether there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped iii) Whether having regard to the advanced stage of pregnancy there is any dangerif the pregnant victim is permitted to terminate her pregnancy iv) The medical process best suited to terminate the pregnancy and the possibility of the child be born alive in the process The wishes of the minor child as regards the future course of action with respect to her pregnancy vi) Any other issues the Medical Board regards as relevant in such matters.” The learned Government Pleader has made available the minutes of the Medical Board convened on 13.01.2021 with the following members “1. Dr.A.Santhosh Kumar Superintendent SATH W.P(c).No.812 2021 B Govt. Medical College Trivandrum Dr.Nandini V.R Professor & Head Department of O & G SAT Hospital Govt.Medical College Dr.Radhika Assistant Professor Department of Neonatology Govt.Medical College TVM Dr.Lallchand A Assistant Professor Dept. of Psychiatry Govt. Medical College TVM Dr.Sreekumari R Professor Department of O G SAT Hospital Govt.Medical College TVM Dr.Priyasree J RMO Gynaec SAT Hospital Govt. Medical College TVM.” The opinion of the medical board is the following “The 14 year old girl was interviewed in the presence of her aunt Mrs. Preetha She reported significant distress on learning that she was pregnant and fervently wishes to have an abortion In view of the patient s opinion and her young age it is determined that the continuation of pregnancy would have an extremely detrimental effect on the patient s mental wellbeing. Hence termination of the pregnancy is recommended from a psychiatric point of view Based on the available USS there is no physical abnormality for fetusThe provisions of S.4 and so much of the provisions of sub section of S.3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion formed in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman 5. This Court has in the judgments in ABC v. Union of India & others: 2020(4) KLT 279 Ms. X v. State of Kerala and Others: 2016 KLT 745 etc. ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child in order to save their lives. The Apex court has in the judgment in A v. Union of India: 3 SCC 462 also permission was granted when the W.P(c).No.812 2021 B pregnancy crossed 24 weeks in view of the medical reports pointing out the risk involved. In the judgment reported in Neethu Narendran V State of Kerala : 2020(3) KHC 157 also this Court permitted termination of pregnancy when gestational age crossed 23 weeks. As found in those cases the minor victim in this case is also not prepared to deliver a baby in this situation. In view of the trauma that the minor girl has undergone and taking note of the report of the medical board I am of the view that the Writ Petition can be allowed permitting termination of pregnancy 6. In the event the baby is born alive it has to be taken care of as observed by the Bombay High Court in the judgment XYZ v. Union of India and Others Bom CR 400) as follows If a child is born alive despite attempts at the medical termination of pregnancy the parents as well as the doctors owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. The extreme vulnerability of such child is reason enough to ensure that everything which is reasonably possible and feasible in the circumstances must be offered to such child so that it develops into a healthy child 7. Therefore the petitioner is permitted to subject her daughter to medical termination of pregnancy. As any delay in undertaking the termination will involve serious consequences affecting the girl as well as the life of the baby in the womb there shall W.P(c).No.812 2021 B be a direction to the Superintendent of SAT Hospital Thiruvananthapuram to see that the termination of pregnancy of the minor girl the daughter of the petitioner is undertaken by competent doctors under his her supervision at the earliest point of time if possible today itself in accordance with the provisions of the Medical Termination of Pregnancy Act 1971 its rules and all other rules regulations and guidelines prescribed for the purpose. The Medical Board shall maintain a complete record of the procedure which is to be performed on the girl for termination of There will be a further direction to the doctors to take the tissue of the foetus for DNA identification and to maintain the same intact for future purposes especially due to the fact that a criminal case is pending in the instant case. 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 W.P(c).No.812 2021 B child so that he she develops into a healthy child 9. The petitioner shall produce the child victim before the Superintendent of SAT Hospital Thiruvananthapuram today itself 10. The Registry and all concerned shall see that absolute privacy is maintained with respect to the identity of the petitioner while issuing the certified copy of the judgment or otherwise. There shall be a direction that copy of the Writ Petition affidavit the documents annexed to it and the medical report shall not be issued to any third person without obtaining orders from this Court The Writ Petition is allowed accordingly Sd P.V.ASHA JUDGE rtr W.P(c).No.812 2021 B PETITIONER S EXHIBITS A TRUE COPY OF THE FIR IN CRIME NO.0012 2021 DATED 6.1.2021 AT ANCHALUMMOODU POLICE STATION KOLLAM A TRUE COPY OF THE OBSTETRICS USS REPORT OF THE GIRL ON 6.1.2021 A TRUE COPY OF THE CASUALITY OUTPATIENT RECORD DATED 7.1.2021 FROM 5TH RESPONDENT 

Summary: Termination of pregnancy if permissible even in cases where the period of gestation has been exceeded as prescribed in the Medical Termination of Pregnancy Act. The High Court bench consisting of J. P. V. Asha, in the matter of Mrs. X. v. Union Of India &amp; Ors. [WP (C) No. 812 of 2021 (B)] allowed the writ petition seeking termination of pregnancy of a minor rape victim. The petitioner was the mother of a 14 year old minor rape victim and had approached the court pointing out that the girl had been carrying about 20 weeks 8 days of pregnancy and the continuation of the same  was contrary to her interest. It was stated that the victim girl was not mentally prepared for the pregnancy and that there was a high risk in the event of continuation of her pregnancy as she has been subjected to the trauma of sexual assault. Initially, the court passed an interim order directing the constitution of a medical board to furnish a report. The medical board in the report stated that the continuance of pregnancy would ben extremely detrimental to the patient’s wellbeing. As per Section 5 of the Medical Termination of Pregnancy Act, termination of pregnancy is permissible even in cases where the period of gestation exceeds the period prescribed in Sections 3 and 4 of the Act, in events wherein the medical practitioner, in good faith, claims that the termination of pregnancy is immediately necessary to save the life of the pregnant woman. The HC relied on the case of Sarmishtha Chakrabortty v. Union of India [(2018) 13 SCC 339], wherein the termination of pregnancy was permitted where the for the patient who was 26 weeks pregnant because the medical board  report revealed that threat of severe mental injury to the women and multiple complex problems to the child, if born alive. Various other cases where relied upon wherein the minor victim was not prepared to deliver a baby.