'Fully Developed Foetus Has Right To Life': Rajasthan High Court Denies Minor Rape Survivor's Plea To Terminate 31-Weeks Pregnancy

Stating that a fully developed foetus has the right to life guaranteed under Article 21, Rajasthan High Court recently declined a plea for the medical termination of an 11-year-old rape survivor's advanced pregnancy.

The single-judge bench of Justice Anoop Kumar Dhand also clarified that a foetus that is fully developed has the right to enter this world and live a healthy life without any abnormalities. Concurring with the report of the Medical Board, the bench sitting at Jaipur observed that termination of pregnancy is not advisable at all in a stage where the foetus has a fully formed brain and lungs, along with heartbeats.

Though the State and the petitioner urged the court to allow the delivery of the minor survivor immediately through the process of inducing labour, the court refused to grant such a relief.

“… Such prayer of the counsels cannot be accepted because if the fetus is taken out today through this process, it will be born at a premature stage and it will grow up with deformities. When a live child is going to be born even today, then it can be born after eight weeks in natural process under the medical advise and supervision”, the court noted in the order after acknowledging that a premature delivery at this stage will affect the neurotic development of the unborn child as well as risk the minor survivor's health.

The report of the Medical Board had also indicated that termination of pregnancy post 31 weeks of carrying the foetus in the womb won't be a safe recourse for the minor mother. Concurring with the same, the single-judge bench added that the autonomy of a woman to determine the continuation of a pregnancy cannot supersede the unrebutted opinion of the Medical Board to the contrary.

The court has also issued a slew of directions to ensure the well-being of the struggling mother and her unborn child. The state authorities have been asked by the court to admit the minor survivor in Government Balika Grah where she should be taken care of till she attains the age of majority, i.e., even after the delivery of her child. Moreover, a female nursing attendant would take care of the survivor to ensure a safe delivery.

In addition to the above-mentioned measures, the Superintendent of Mahila Chikitsalaya (Sanganeri Gate) has been directed to provide all medical facilities to the petitioner pre and post-medical delivery, free of cost. Upon birth in a safe environment, the child would be handed over to the Child Welfare Committee after the survivor completes all the necessary procedures through her legal guardian. Apart from this, the Chikitsalaya has also been mandated to preserve the blood sample, tissue and cord of the foetus for DNA analysis by FSL and for investigation in the rape case.

In accordance with the Rajasthan Victim Compensation Scheme, 2011, the court has asked the state and district legal services authorities to pay the appropriate amount of compensation to the victim/survivor. A child protection officer will be entrusted with the task of regularly visiting the survivor. The Jaipur Rural SP will oversee all these processes to ensure compliance with the court order.

The court proposed that the survivor may stay at Balika Grah since there is no one else in her family to currently look after her or her unborn child. She is also at liberty to give away her child for adoption as per the laid down legal procedures.

Before disposing of the writ, Justice Anoop Kumar Dhand referred to similar case laws from the Punjab & Haryana High Court such as R v. State of Haryana & Anr[Civil Writ Petition No. 13256/2023] as well as X v. State of Haryana & Anr.[Civil Writ Petition No. 24346/2023]. The court also placed its reliance on the apex court's decision in X v. Union of India, 2023 LiveLaw SC 840 [Writ Petition (Civil) 1137/2023] where a married woman's plea to abort a 26 weeks old foetus by citing postpartum psychosis was rejected.

In this case, the plea for medical termination was made by the petitioner minor through her maternal uncle, citing the atrocities committed against her that resulted in the unwanted pregnancy, the mental and physical trauma that she is being subjected to as a result, and the constraints of her family members to adequately care for her if the child were to be born.

Earlier, a medical board consisting of four doctors had opined in the report that the foetus is past 31 weeks currently. Since the minor mother only weighs 34.32 Kgs, that aspect along with her deranged liver function test places her in the high-risk category with regards to her pregnancy, the report elucidated. According to the report, the advanced gestational period makes it impossible to carry out a safe medical termination of pregnancy.

Case Title: Victim v. State of Rajasthan & Ors

Case No: S.B. Civil Writ Petition No. 821/2024

Citation: Citation: 2024 LiveLaw (Raj) 10