Gujarat High Court Issues Guidelines For Medical Board To Follow While Forming Opinion Of Termination Of Pregnancy

While permitting a 16-year-old alleged rape survivor to terminate her over 24 week pregnancy, the Gujarat High Court last week issued guidelines for registered medical practitioner/medical board to follow while forming their opinion on termination of pregnancy focussing on physical and emotional well-being of the pregnant person. 

A single judge bench of Justice Sanjeev J Thaker, in its November 8 order while referring to the Supreme Court's decision in Mother of X vs State of Maharashtra and others, issued the guidelines which states:

• The registered medical practitioner / medical board should not only consider the criteria under Section 3(2-b) (allowing the termination of a pregnancy between 20 to 24 weeks if two medical practitioners agree that continuing the pregnancy would risk the woman's life or health or cause serious abnormalities in the foetus) of the Medical Termination of Pregnancy Act but also assess the physical and emotional well-being of the pregnant person.
• The registered medical practitioner / medical board must state in their report whether continuing the pregnancy to full term would affect the physical and mental health of the pregnant person.
• The registered medical practitioner / medical board should also determine if the pregnancy can be safely terminated at this stage without harm to the pregnant person.
• The Court further observed that medical practitioner or board “must not restrict to the criteria” in Section 3(2-b) of the MTP Act, they must also consider the overall physical and emotional well-being of the pregnant person.

"It is needless to say that such guidelines are not in exhaustive manner and the registered medical practitioner / doctor/ board are at liberty to state any additional facts / opinion which it deems necessary in the facts of each case," the high court added. 

The court was the order while hearing the plea of the girl's father seeking termination of pregnancy. The FIR was registered under BNS (Bhartiya Nyaya Sanhita), 2023 Sections 87 (pertains to kidnapping, abducting, or inducing a woman to compel her into marriage or illicit intercourse), 64(2)(m) (punishment committing rape repeatedly on the same woman) and Sections 4 (punishment for penetrative sexual assault) and 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act, 2012.

It was submitted in the application that the the 16-year-old girl ran away with the accused, who deceived her with false promise to marry, despite knowing she was a minor. During the ongoing investigation, it was discovered that the girl is pregnant.

The Petitioner father submitted that this fact came to his knowledge on October 14 and after the examination of the girl at Department of Radio diagnosis, Jamnagar, that she was carrying pregnancy of 21 weeks and 6 days. Furthermore, he submitted that the victim, being a minor and an alleged rape survivor, is physically unable to care for the child. Continuing the pregnancy would cause her severe mental, physical, emotional, and social trauma, negatively impacting her life, he said.

When the matter was heard on October 30 order the court had directed the concerned authority to asses her mental and physical health and submit a report by November 7 indicating whether any significant impact would result from carrying out the termination of pregnancy.

On November 7, the high court noted that the reports submitted by the Hospital's Head of the Department which stated the opinion of expert panel of gynaecologist for termination of pregnancy. It also took note of an affidavit submitted on behalf of the petitioner stating the consent of the victim for the termination of pregnancy. In the said affidavit, it had been stated that the petitioner has also been made aware about the risk of potential complication associated with the termination of pregnancy and that the petitioner and the victim understand the medical complication and possible outcome of the procedure and that the petitioner and victim are ready and willing to proceed with the termination of pregnancy of the victim and that the consent of the victim has also been obtained

Justice Thakkar further observed “It is the case of the present petitioner that looking at the age of the victim, who is merely of 16 years and 02 months, the victim will not be fit for responsibility of raising child at this tender age and that if the victim continues with the pregnancy, it would adversely affect her physical and mental health. At this stage, the Court has to consider the decision wherein 'the best interest' of the victim and consider her trauma, mental agony and possibility of social ostracism of continuing with the pregnancy.”

The Court further observed that the report from November 4 suggested continuing the pregnancy, but this was later revised on November 7, stating that continuing the pregnancy would harm the victim's physical and mental health. It also mentioned that while there are risks, a medical abortion is possible. The victim's father confirmed understanding the risks, and both the victim and her father have consented to the abortion. 

"Looking at the facts of the present case and the fact that victim, who is aged 16 years, the victim would suffer grave injury to her mental and physical health if she will be forced to continue with the pregnancy at such a tender age apart from above the victim will suffer from social stigma also," it said. 

Thereafter, the Court observed Although the pregnancy is at 24 weeks and 5 days, the risk of terminating it is not higher than the risk of full-term delivery. Expert doctors, in a report dated 07.11.2024, confirmed that continuing the pregnancy would seriously harm the victim, and they agreed that medical termination of the pregnancy is possible.

It thereafter went ahead to allow the termination of the pregnancy at considering the consent of the victim and her guardian and laid down conditions:

• the procedure will be done with expert doctors present, who will explain the risks to the victim and her family,
• all necessary medical care, including paediatric and radiology support, will be provided during the procedure,
• post-operative care will be given as needed.
• if the foetus is alive, medical assistance will be provided, either at the hospital or another facility,
• a DNA sample from the foetus will be taken for identification and sent to the investigating officer.
• the state will cover all medical expenses.
• the victim will remain in the hospital until discharged by the doctors once she is stable.

The Court then disposed of the petition and directed to provide the order to APP and the concerned hospital and investigating officer for taking necessary action.

Case Title: XYZ Through Her Father v/s State of Gujarat & Anr.

LL Citation: 2024 LiveLaw (Guj) 170

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