Medical Termination of pregnancy after 26 weeks allowed in case of minor’s rape: High Court of Kerala

WP(C).No.29209 OF 2020(A IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY THE 04TH DAY OF JANUARY 2021 14TH POUSHA 1942 WP(C).No.29209 OF 2020(A AGED 37 YEARS AGED 34 YEARS AGED 15 YEARS BY ADV. SRI.ADITHYA RAJEEV STATE OF KERALA REPRESENTED BY SECRETARY MINISTRY OF CHILD WELFARE THYCAUD THIRUVANANTHAPURAM PIN 695 014 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM PIN 695 011 THE DIRECTOR OF MEDICAL SERVICES GENERAL HOSPITAL JUNCTION THIRUVANANTHAPURAM 695 035 THE DISTRICT MEDICAL OFFICER KOTTAYAM DISTRICT OFFICE OF THE DISTRICT MEDICAL OFFICER KOTTAYAM 686 002 THE SUPERINTENDENT OF MEDICAL COLLEGE HOSPITAL KOTTAYAM GANDHI NAGAR P.O. KOTTAYAM PIN 686 008 THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF WOMEN AND CHILDREN DEVELOPMENT SASTHRI BHAVAN NEW DELHI PIN 110 001 WP(C).No.29209 OF 2020(A SMT.PRINCY XAVIER GP THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 04.01.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING WP(C).No.29209 OF 2020(A Dated this the 4th day of January 2021 An unfortunate minor rape victim girl aged 15 years has approached this Court along with her parents pointing out that the girl is carrying about 23 weeks of pregnancy and that continuation of her pregnancy would be contrary to her interest Crime No.1171 2020 has been registered in Thrikodithanam Police Station in respect of the incident. The Writ Petition is filed producing Exts.P3 and P5 medical reports dated 09.12.2020 and 15.12.2020. As per Ext.P3 report the gestational age was found to be 22 weeks and 6 days as on 09.12.2020. 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. 2. When the matter came up for admission on 29.12.2020 this Court passed an interim order directing the District Medical Officer Kottayam to constitute a medical board with all specialists required to conduct medical termination of pregnancy and file a report before this court traversing through the 3. The learned Government Pleader has made available the minutes of the Medical Board convened on 31.12.2020 with the WP(C).No.29209 OF 2020(A following members: Dr.Shainimol A ThachankaryThe 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 6. 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 have 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: 13 SCC 339 permitted termination of pregnancy when the gestational age was 26 weeks in view of the recommendation of the medical board and the medical report WP(C).No.29209 OF 2020(A revealing the threat of severe mental injury to the woman and to the multiple complex problems to the child if born alive involving complex cardiac corrective surgery stage by stage after birth in the event of continuation of the pregnancy. In Meera Santosh Pal v. Union of India: 3 SCC 462 also permission was granted when the 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 pregnacny when gestational age crossed 23 weeks. As found in those cases the minor victim in this case is also not prepared to deliver a child in the situation. In view of the trauma that the minor girl has undergone and taking note of the opinion of the Psychiatrist coupled with the report of medical board I am of the view that the writ petition can be allowed permitting termination of pregnancy. 7. 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 :(2019Bom. CR 400) as 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 8. Therefore petitioners 1 and 2 are permitted to subject WP(C).No.29209 OF 2020(A their daughter 3rd petitioner 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 be a direction to the Superintendent of Government Medical College Kottayam to see that the termination of pregnancy of the minor girl the 3rd 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 her pregnancy. 9. 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 child so that he she develops into a healthy 10. As the minor girl is accommodated at Children s Home WP(C).No.29209 OF 2020(A Kottayam there shall be a direction to the Superintendent of the Children s Home Kottayam to produce the child victim before the Superintendent of the Government Medical College Kottayam today itself. The Registry and all concerned shall see that absolute privacy is maintained with respect to the identity of the petitioners 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 WP(C).No.29209 OF 2020(A PETITIONER S S EXHIBITS A TRUE COPY OF THE BIRTH CERTIFICATE OF THE 3RD PETITIONER DATED 13.03.2006 ISSUED BY THE REGISTRAR ARPOOKARA GRAMA PANCHAYAT A TRUE COPY OF THE REMAND REPORT IN CRIME NO.1171 OF 2020 OF THE THRIKODITHANAM A TRUE COPY OF THE ULTRASONOGRAPHIC REPORT OBS OF THE 3RD PETITIONER DATED 9.12.2020 ISSUED BY PRIME SCANS AND LABORATORIES A TRUE COPY OF THE ORDER OF PLACEMENT OF A CHILD IN AN INSTITUTION DATED 14.12.2020 ISSUED BY THE CHILD WELFARE COMMITTEE A TRUE COPY OF THE REPORT DATED 15.12.2020 ISSUED BY THE MEDICAL COLLEGE HOSPITAL 

Summary: The court said that in the case of a rape victim who has not attained the age of majority, the medical termination of pregnancy can happen even after the gestational period of 26 weeks by Hon’ble Justice Justice P.V.Asha of High Court of Kerala in the case ABC vs. State of Kerala and Ors. [Civil Writ Petition No.29209 of 2020 (A)].  This decision was made in furtherance of a writ petition filed which is also associated with a criminal case of rape. The case involves a 15-year-old minor rape victim who is carrying about 23 weeks of pregnancy Her parents assert that the continuation of her pregnancy would be contrary to her interest as she was not mentally prepared to accept it. Further, she was also traumatized by the sexual assault done to her. An interim order was passed by the court for constituting a medical board that included specialists in the matter. Their opinion was of utmost importance to the court under Section 5 of the Medical Termination of Pregnancy Act, 1971. The relevant provisions mentioned by the court state that the existence of this exception concerning the length of the pregnancy is allowed as long as medical specialists are in favor of MTP. The opinions read that the continuation of pregnancy of teenage girls, in general, has a high risk of developing serious medical conditions. Also, the failure to conduct MTP may result in excessive blood loss and thereby be a threat to her life. The court took note of past judgment where the Supreme Court permitted termination even though the gestational age was 25-26 weeks in the case of A.V Union of India (2018) 4 SCC 75. Another aspect to be dealt with was with the age of the minor and for this the court referred to Murugan Nayakkar v Union of India: 2017 SSCC online SC 1092 where termination of pregnancy of a 13-year-old child was allowed when the gestational age was 26 weeks. The court also ordered to take proper care of the child if the baby was born alive. For this, it took the help of the judgement laid down in  XYZ v. Union of India and Others [2019(3) Bom, CR 400)] where it was held “In case 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. “ After taking into consideration the aforementioned judgments, the court concluded that the child was unprepared in light of the trauma that she had gone through. Moreover, the opinion that was given by the medical professionals also gave weightage to the judgement of the court.