Gujarat HC Permits Abortion Of Over 20 Week Foetus Of Rape Victim [Read Order]

The High Court of Gujarat on Wednesday permitted a 16-year-old rape survivor from Ramol to undergo an abortion.

“Having regard to the fact that the victim is aged sixteen and is carrying pregnancy of above twenty weeks, the same will cause lot of mental stress and grave injury to her mental health,” Justice J.B. Pardiwala observed. The Court thereby directed the doctors to terminate the pregnancy, after being satisfied that such termination would be carried out safely.

During the course of the hearing, the Court noted that no application had been filed before the lower Courts for the necessary permission. It however took up the matter, opining that a direction to apply before the concerned Court would “take some more time and the same will not be in the interest of the victim”.

Thereafter, on receiving assurance from Dr. Shirish Toshniwala of Civil Hospital, that the abortion would not endanger the life of the victim, the Court decreed the relief. It further directed the Medical Superintendent of the Civil Hospital, Ahmedabad to hand over the tissues drawn from the foetus to the Investigating Officer for the purpose of DNA identification.

The Medical Termination of Pregnancy (MTP) Act, 1971 prescribes a 20 weeks limit for carrying out an abortion of a foetus. While an amendment was drafted in 2014, seeking to increase the abortion time limit from 20 weeks to 24 weeks, the same has not seen the light of the day till now. Courts have, however, in the past made exceptions and permitted abortions of fetuses beyond the statutory time limit.

The Supreme Court had, in January this year, allowed a 22-year-old woman to terminate her 24-week pregnancy on medical grounds. It had relied on the medical board’s report that had recorded that the pregnancy posed grave danger to the mother’s life, as the foetus was without a scalp and not in a position to survive.

In another instance in July, 2016, the Apex Court had allowed a 26-year-old alleged rape victim to abort a 24-week old foetus with severe abnormalities, after the medical board had opined that the mother’s life could be in danger if appropriate steps weren’t taken. In that case, a Bench headed by Justice J.S. Khehar had made it clear that such exception can be carved out only in cases where the mother’s life is in danger.

The High Court of Kerala had also allowed a Petition in November, 2016, permitting the termination of more than 20-week pregnancy of a rape victim. Gujarat High Court had permitted a similar application, taking the view that the “best interests” of the victim were paramount.

Punjab and Haryana High Court had taken a step further in June last year, and had advised the Central Government to consider amending the Medical Termination Of Pregnancy Act, 1971 and clarify in so many words to the doctors that they will not be unnecessarily prosecuted if they act in accordance with the rules, in good faith, to save the life of a rape victim or to prevent grave injury to her physical and mental health.

Read the Order here.