Kerala HC: Reproductive Rights Come Under the Ambit of Personal Liberty under Art 21

April 06, 2020

by Sharvari Lohakare

In a recent judgement, the High Court of Kerala has allowed a 14 year old pregnant rape survivor to terminate the pregnancy in its 24th week.  A division bench comprising of Justice AK Jayasankaran Nambiar and Justice Shaji P Chaly held an urgent hearing via video conferencing on Sunday. After considering the opinion of the Medical Board the bench allowed for abortion as the continuance of pregnancy may affect the physical and mental health of the adolescent rape survivor.

The writ petition seeking termination of pregnancy was filed in the court by the father of the girl. The girl had gone missing about five months ago. A habeas corpus petition was filed in the Kerala HC to trace her. After five months, she was found out living with a 28 year old married man in Mangalore. The man was arrested and charged with offences under IPC and POCSO.

The Medical Termination of Pregnancy Act, 1971 which legalizes abortion in India allows termination of pregnancy above 20 weeks only in grave cases. Since the pregnancy of the girl had developed beyond 20 weeks i.e. the statutory fixed period permissible for legal abortion, the girl’s father moved the HC with their Advocate Rajit asking for urgent direction.

The court directed the Medical Board to provide with a medical report concerning risk of pregnancy on the health of the minor girl as the matter required urgent attention.  The Medical Board in its report stated that continuation of pregnancy at 14 years of age would definitely involve risks to the life of the pregnant girl. There is an increased risk of obstetric complications including gestational hypertension, anaemia and risk of obstetric haemorrhage. It also opined that there are chances of high mentally unstable personality traits as the girl is not mentally capable to be a mother. The bench held a brief video conference with Dr. Ambujam K, Professor and Head of the Department Obstetrics and Gynaecology, Medical College Hospital, Trichur.

The court noted that right to make a reproductive choice comes under the ambit of personal liberty which is a part of Article 21 of Indian Constitution. The right is subject to restrictions under the Medical Termination of Pregnancy Act. But as the medical report deems the girl unfit for continuation of pregnancy and there is clear consent on girl’s parents  court allowed termination. The section 5 of the Medical termination of Pregnancy Act, 1971 also applies that termination of pregnancy beyond the period of 20 weeks prescribed under section 3 of the same Act is legally permissible if it is necessary to save the life of the pregnant woman.

The court ruled termination of pregnancy after analyzing all the possible dimensions and directed the doctors to identify DNA of the foetus for the pending criminal case against the man. However the report also suggested that the baby might survive termination as the pregnancy is in 24th week. Upon which the court ensured everything which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose shall be offered to the child so that it develops in healthy circumstances.

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