A minor's reproductive rights regarding termination of pregnancy are protected under Article 21 when health risks arise, especially after rape.

JUDGMENT

Dated this the 12th day of December, 2022 The petitioner's daughter, a 17 year old mentally challenged girl is pregnant by 26 weeks. The pregnancy is alleged to be the result of rape committed on the innocent girl by a neighbour. Neither the victim nor the petitioner were aware about the pregnancy until the girl was examined by a Gynecologist recently. By that time, the fetus had crossed the gestational age of 24 weeks, thereby making it impossible to medically terminate the pregnancy without an order in that regard from the constitutional court. Hence this writ petition.

2. Learned counsel for the petitioner submitted that the incident has resulted in a crime being registered against the perpetrator for the offences under the Indian Penal Code and the Protection Of Children from Sexual Offences Act, 2012.

3. It is submitted that the child is in utter shock on being informed about the pregnancy and is under extreme physical and mental stress. She has been pleading to get the pregnancy terminated. In view of the restriction contained under the Medical Termination of Pregnancy Act , no hospital is prepared to conduct the surgery without an order from this Court.

4. When the writ petition came up for admission on 07.12.2022, the Superintendent, Government Medical College, Kannur was directed to constitute a Medical Board for examining the victim girl and submitting its opinion. Accordingly, the Medical Board has submitted its opinion, the relevant portion of which reads as under;

“... Following directions by Hon'ble High Court of Kerala, the Medical Board consisting of above faculties which was convened has reached at the following conclusions;

1. Patient is 17 years of age as per CWC

reference. She is unmarried, gestational age of the fetus as per latest Ultrasound scanning report (06/12/2022) is 25 weeks 5 days. Clinical examination showed Anaemia (Hb-9.3) with normal BP

and other vitals.

2. She was further evaluated by HOD, Psychiatry and Physical Medicine and Rehabilitation.

3. There is no locomotor physical disability. 4. There is a possibility that the baby may be born alive.

The Medical board felt that the available methods of MTP are effective only upto 20 weeks of gestation. Beyond 20 weeks, pregnancy is to be induced as per induction of normal pregnancy. In view of the gestational age of 26 weeks, in addition to the usual risks like haemorrhage, sepsis, risk of blood transfusion etc, due to the present gestational age, there is a possibility that the uterus may not respond to the usual methods of medical induction. In that situation we may have to resort to surgical methods (hysteretomy) which involves anaesthesia and surgical risks.

Based on the available ultrasound there is no physical abnormality in the foetus. As per national neonatology forum guidelines, the viability is 28 weeks of pregnancy. As per NRP guidelines India and AAP, resuscitation is considered after completion of 24 weeks of pregnancy. If the baby is born alive, we will have to considered resuscitation.

Psychological evaluation of the survivor showed mild intellectual disability with moderate disability. As per this evaluation, patient has intellectual disability with 1Q 51. Continuation of pregnancy can seriously affect her mental health. She is likely to develop depression and psychosis.

Medical Board has arrived at the conclusion that termination of pregnancy shall be considered.”

5. Heard Adv. G. Vidya learned Counsel for the petitioner, and Adv. K. Amminikutty, the learned Government Pleader.

6. The law on medical termination of pregnancy is governed by the Medical Termination of Pregnancy Act , 1971. Section 3 being contextually relevant is extracted hereunder;

“3. When pregnancies may be terminated by registered medical practitioners.—(1) Notwithstanding anythi