'Foetus May Be Born Alive': Punjab & Haryana High Court Declines Rape Victim's Plea For Termination Of 25-Week Pregnancy

The Punjab & Haryana High Court has refused to allow termination of pregnancy beyond 25 weeks of a rape victim, observing that the medical board opined that there is a possibility of the foetus being delivered alive if terminated at this stage.

Justice Vinod S. Bhardwaj said, "When the possibility of the foetus being delivered alive and chances of survival being between 50-70%, the Court would require to be aware of the physical and neurological effect which such a procedure may have on the foetus, if delivered alive. The risks become immense and the child may have to live a crippled or a dependent life due to challenges to mental and physical growth, all for no fault of the child unborn."

While the Court cannot undo the wrong already committed against the petitioner and can only take restorative measures, it can strike a balance for the apprehensions and the challenges expressed by issuing appropriate directions, added the judge.

Refusing to allow the termination, the Court permitted the petitioner if she wishes, to appear before the Medical Board for medical re-examination under the Medical Termination of Pregnancy Act, 1971.

"In the event of the petitioner appearing before the said Medical Board and its opinion affirming the subsisting risks and complications as indicated by status report filed in this Court having chances of live delivery or requiring feticide, the medical termination of pregnancy of the petitioner shall not be undertaken. On the other hand, if the Medical Board of the PGI opines in favour of medical termination of pregnancy, then the requisite procedure of termination of pregnancy may be carried out in accordance with law," the Court added.

These observations were made while hearing a writ petition for issuance of a writ in the nature of Certiorari for quashing the impugned order passed in June by the President of the Medical Board for Pregnancy Termination.

The counsel appearing for the petitioner submitted that she was raped and became pregnant due to the offence committed on her and by the time she realized, pregnancy was beyond 24 weeks. As of July 01, the pregnancy of the petitioner was 25 weeks and 02 days, he added.

He further submitted that the petitioner has consulted and taken a second opinion regarding the said medical termination of pregnancy from a different medical institute and that the said medical institute has opined that there might be fair chances that if the termination is permitted then the foetus may not be born alive and no risk subsists to the life of the petitioner.

Responding the above, Counsel appearing on behalf of the respondent submitted that as per the status report of the Medical Board, the possibility of live birth of the foetus is there and there are even chances of failure of medical termination of pregnancy. He states that further, the report mentions that the process may require hysterotomy (surgical procedure) and risks of complications related to delivery / surgical procedure are also there.

After hearing the submissions, the Court referring to Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act)  and MTP Rules said, "...the pregnancy may be terminated by a registered medical practitioner subject to the provisions contained under the Act and the rules framed thereunder after obtaining opinion from the medical practitioners/medical board. Section 3 (2) entitles termination of the pregnancy where continuance thereof involves risk to the life of the pregnant woman or grave injury to her physical or mental health or that the child suffers from substantial risk of physical or mental abnormality."

It further recognizes the right of a woman to exercise discretion where the pregnancy is an outcome of failure of contraceptive devices adopted or where such pregnancy is an outcome of rape or physical assault or under circumstances as elaborated in Rule 3 B of the Rules of 2003 as amended, it added.

The Court noted the argument that pregnancy is an outcome of rape and the child would live with the trauma of an unwanted child and would also mar the future prospects of the petitioner who is merely 21 years old and has an entire career ahead.

"The arguments although reflect the social circumstances and outlook towards victim of rape and the child born out of it, however, the question as to whether termination of pregnancy is to be allowed or not has various dimensions," observed the judge.

Justice Bhardwaj highlighted that the crucial factors required to be kept in mind are the medical perspectives which take account of not only the health of the mother and the foetus but also the viability of the foetus to survive. The other aspects pertain to the legal aspects; the socio-economic circumstances; the psychological impact as well as the ethical considerations.

The judge said that the medical report submitted by the Board attains significant importance. "While being conscious of the demand for termination of the pregnancy, the Paediatrician has opined as to the chances of survival of the baby."

"The same opinion is also held by the Gynaecologist who has flagged fair possibility of live birth and failure of medical termination of pregnancy. She also reported that termination of pregnancy may require a surgical process increasing risks of complication related thereto. The Psychiatrist had not flagged any mental health issues and reported the petitioner to be mentally fit," added the Court.

The judge noted that the Termination of pregnancy beyond 25 weeks is complete and the foetus has a relatively very high chance of survival outside the womb with appropriate medical care.

When the possibility of the foetus being delivered alive and chances of survival are between 50-70%, the Court would require to be aware of the physical and neurological effect which such a procedure may have on the foetus, if delivered alive. The risks become immense and the child may have to live a crippled or dependent life due to challenges to mental and physical growth, all for no fault of the unborn child, added the Court.

In light of the above, the Court opined that "the circumstances surrounding the case do not give rise to compulsive and convincing reasons where pregnancy must be terminated."

While passing certain directions to the medical board and the Child welfare committee, the Court allowed the petitioner if she wishes, to appear before the Medical Board for medical re-examination under the MTP Act and terminate the pregnancy if the board is in favour of the termination.

Mr. Shalender Mohan, Advocate for the petitioner.

Mr. Suneel Ranga, DAG, Haryana.

Title: XXX v. XXX

Citation: 2024 LiveLaw (PH) 261

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