Compelling rape survivor to continue pregnancy impairs right to live with dignity: HC

Compelling a rape survivor to continue with a pregnancy resulting from the crime and fastening the responsibility of motherhood on her against her will would amount to a serious impairment of her right to live with dignity, the Delhi High Court has held.

The court made the observations while allowing a plea on behalf of a 15-year-old rape survivor seeking the termination of her pregnancy, which had exceeded 30 weeks of gestation.

Under Section 3 of the Medical Termination of Pregnancy (MTP) Act, termination of pregnancy beyond 20 weeks and up to 24 weeks is permissible in respect of specified categories of women, subject to the statutory requirements.

Terming it an unfortunate and distressing case, Justice Madhu Jain said the fact that the pregnancy had crossed the statutory limit, by itself, could not be viewed in isolation.

“In cases arising out of sexual assault, compelling a survivor to continue with a pregnancy resulting from the assault and thereby fastening upon her the responsibility of motherhood against her will would amount to a serious impairment of her right to live with dignity,” the court said in its September 8 order.

It said that a woman’s right in relation to her body necessarily included the right to decide whether or not she wished to become a mother.

To compel a survivor of sexual assault to carry and deliver a child conceived as a consequence of the alleged assault might subject her to further and enduring physical and psychological trauma, the court added.

The judge observed that while the advanced gestational age of the pregnancy required heightened medical caution, it could not by itself deprive the minor of consideration of her rights to bodily autonomy, dignity and reproductive choice.  At the same time, any medical procedure must necessarily remain subject to an assessment of her physical fitness and medical feasibility and to all requisite safeguards, it added.

Justice Jain said while exercising jurisdiction under Articles 226 or 32 of the Constitution, the court must give due primacy to the best interests and welfare of the minor mother-to-be, while simultaneously considering the statutory framework under the MTP Act.

“Where the welfare and well-being of the pregnant woman or minor are under consideration, her reproductive autonomy, dignity and bodily integrity assume significant importance, particularly having regard to the peculiar facts and circumstances of each case,” it said.

The court said it was constrained to observe that cases like this one leave an “indelible sense of anguish” and noted that the petitioner was a child of aged merely 15 who had already been subjected to the trauma of a heinous sexual assault and, to add to her vulnerability, had lost both her parents.

At an age when a child ought to be protected, nurtured and allowed to grow in safety and dignity, she had instead been compelled to confront circumstances which no child should ever have to face, it said.

“A child of 15 years cannot, in the eyes of this court, be reduced to the description of a ‘mother’ merely because she has been forced into pregnancy as a consequence of sexual violence,” the court said.

It said the court was mindful that the loss of both parents made the circumstances of the girl more difficult.

The law might provide remedies and procedures, but no order of a court could undo the trauma that the child had endured, it said.

“What the court can, however, do is ensure that, at a moment of such profound vulnerability, the child is met not with further hardship, but with care, dignity, compassion and the protection of the law,” the court said.

The judge said she hoped that the petitioner would be provided every possible support, care and protection so that she could have an opportunity to reclaim the childhood and dignity which no child should ever be deprived of.

While allowing the plea, the court directed medical superintendent of Lady Hardinge Medical College and S K Hospital to make arrangements for the termination of the girl’s pregnancy at the earliest and maintain a record of the procedure undertaken.

It asked the doctors to preserve the tissue or foetal material for DNA identification and other purposes in connection with the criminal case lodged in relation to the rape.

The State was directed to bear all expenses relating to the termination, including the procedure, medicines, investigations, hospitalisation, food and incidental medical requirements.

The court directed that if the child was born alive despite the medical procedure, all feasible measures be taken for its medical care, with the Child Welfare Committee to take further steps in accordance with law.