Kerala High Court Permits Abortion Of Over 15-Week Pregnancy Of Mentally Challenged Rape Victim

Taking on the role of parens patriae, the Kerala High Court on Monday permitted termination of an over 15-week pregnancy of a mentally challenged rape victim citing that it was in her best interests as she was incapable of making an informed decision on her own.

Justice P. B Suresh Kumar permitted the Government Mental Health Centre and Sree Avittom Thirunal Hospital to carry out the medical termination of pregnancy. The hospitals were also directed to take the tissue of the foetus and maintain the same for DNA examination as the woman was a rape victim.

The victim who hails from Bihar was wandering around the streets when the Police found her. Upon medical examination, it was revealed that she was pregnant. Since her relatives could not be traced, assistance from the District Legal Servies Authority was sought. 

On that reference, the Kerala State Legal Services Authority filed the petition seeking orders granting permission for medical termination of the pregnancy of the victim alleging that according to Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971, the victim being a major, her consent was required for terminating the pregnancy, and the victim is not in a position to grant consent for termination of the pregnancy.

Advocate K.P Pradeep appeared for the petitioner. ASG AP Vijayakumar and Government Pleader Vinitha B represented the respondents in the matter. 

The Single Bench took the decision based on the report of a medical board which after examining the woman had opined that though the continuation of the pregnancy does not endanger the life of the victim, there was a high risk for the mother and baby as she was on multiple antipsychotic medications.

A certificate issued by the medical board attached to the Mental Health Centre also indicated that the victim was suffering from mental retardation with psychosis and was unable to make decisions or communicate her opinion, the court noted in its order.

"Having regard to the fact that the person involved in the case is a rape victim and considering the opinion of the medical board, I am of the view that in a case of this nature, it is in the best interests of the person concerned to permit termination of her pregnancy," the Court held.

The Bench observed that in the instant case the pregnancy was one that could be terminated on the basis of the opinion of a registered medical practitioner that the continuance of the pregnancy would involve a grave injury to her mental health since the gestation period was not more than twenty weeks.

Even otherwise, the pregnancy was one that could be terminated on the basis of the opinion of two medical practitioners on the above lines, the court said and added that the only impediment in the matter was that the victim was not in a position to give consent for the same.

The court, thereafter, applied the doctrine of 'parens patriae', a concept evolved in common law and applied to situations where the State must take decisions in order to protect the interests of those persons who are unable to take care of themselves.

"This doctrine has been applied in cases involving rights of minors and those persons who have been found to be mentally incapable of taking informed decisions for themselves," the Single Bench remarked.

It further stated that courts in India have evolved different tests while exercising 'parens patriae' jurisdiction for the purpose of making reproductive decisions on behalf of mentally ill persons.

"One among the said tests is the test of 'best interests' which requires the court to ascertain the course of action which would serve the best interests of the person in question," it added.

Title: Kerala State Legal Services Authority v. Union of India & Ors. 

Click Here To Read The Order