12-Yr-Old Girl Denied Permission To Terminate 25 Weeks Old Twin-Fetuses, Calcutta High Court Relies On Medical Report Citing Risk Of Maternal Death

The Calcutta High Court on Wednesday denied to grant relief of medical termination of pregnancy to a 12 years old minor girl, claiming to be a victim of rape and sexual assault, on the ground that termination of pregnancy involved a risk to the extent of maternal death.

The single judge bench of Justice Aniruddha Roy observed:

“However, in the light of the said report furnished by the Medical Board dated April 4, 2023 as quoted above, one crucial factor is there, of which this Court cannot be unmindful, that the termination of pregnancy at this stage of gestation may carry a risk even to the extent of maternal death. Here this Court got stuck as the life of the minor girl is paramount at this stage. If ultimately, the minor girl has to sacrifice her life in the event of termination of her unwilling pregnancy at this advanced stage, then the question automatically comes to the mind of this Court that whose personal life, liberty and dignity shall be protected as guaranteed under Article 21 of the Constitution. For those reasons and discussions, this Court cannot proceed to grant any relief for medical termination of the pregnancy of the said minor girl.”

The writ petition was filed by the mother of the victim praying for termination of pregnancy of her minor daughter.

A FIR dated March 9, 2023 was registered with regard to the alleged offence of rape and sexual assault under Section 6 (Punishment for aggravated penetrative sexual assault) of the POCSO Act, 2012 at Bagdogra Police Station.

The victim was admitted to North Bengal Medical College and Hospital, Siliguri and after examination by the medical board it was found that the victim girl was carrying with twin live-fetuses of 25 weeks and 25 week one day respectively as on March 20, 2023.

In pursuant to the order of the High Court dated April 4, 2023, a report was filed by the Zonal Medical Board which states:

“As twin babies achieve period of viability and not associated with any congenital malformation and any pregnancy related complication except the young age that is 12 years, so termination of this pregnancy cannot be done under prevailing MTP Act 2021. The termination can be carried out on the basis of your Honourable Court order. However, termination of this pregnancy at this age of gestation carries risk of massive haemorrhage, infection, sepsis, surgery & Anaesthetic risks even maternal death. Furthermore delivery of live babies is possible, that may require resuscitation. So the Honourable court may order whether to resuscitate babies or not and send material for Forensic testing.”

The court noted that according to the report of the Medical Board, the age of the gestation carries risk of massive complications even the same can go up to the maternal death.

The Court observed:

“This Court needs to ponder at this stage as to whether continuance of such unwilling pregnancy would involve a risk of causing grave injury to the mental health of the minor girl and whether the constitutional safeguard for protection of life can be extended to her, if so, to what extent.”

The court further observed that constitutional protection of life and liberty including to lead a life without any phobia, fear, trauma and with dignity had been statutorily recognized and are embedded within the Medical Termination of Pregnancy Act, 1971 (MTP Act).

The Court opined:

“No fetus can grow up naturally if the life of the mother is not supported and smooth sailing. The statute also provided for mothers‟ health, strength and also life. Just by giving birth out of an unwilling pregnancy rest of the life of the mother cannot be in a compromised existence.”

It was further averred by the court that if ultimately, the minor girl has to sacrifice her life in the event of termination of her unwilling pregnancy at this advanced stage then whose personal life, liberty and dignity shall be protected as guaranteed under Article 21 of the Constitution.

Thus, the court held that it cannot proceed to grant any relief for medical termination of the pregnancy of the said minor girl.

However, the court directed that the concerned hospital to take all possible medical care and all further steps with regard to the necessary treatment and medical assistance required for the minor girl and the fetuses without any laches or negligence.

The Court further held:

“However, this Court further observes that in the event the said minor girl and her family are incapable to nurture and maintain the twin children and if no claim for adoption or maintenance of the said twin children are received or lodged, then the minor girl and her family may approach and apply before the jurisdictional District Magistrate and/or the appropriate authority under the Juvenile Justice (Care and Protection of Children) Act of 2015 (hereafter the Act of 2015) for adoption and foster care of the twin children.”

Accordingly, the Court disposed of the writ petition.

Case Title: Y v. State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 94

Coram: Justice Aniruddha Roy