While allowing an alleged 16-year-old rape survivor to terminate her pregnancy beyond 24 weeks, the Gujarat High Court last week issued guidelines for the registered medical practitioner/board to follow while forming its opinion regarding termination of pregnancy, focusing on physical and emotional well-being. – to be pregnant.

A single bench of judges Justice Sanjeev J Thaker, in its order dated November 8 referring to the decision of the Supreme Court in Mother of X vs State of Maharashtra and others, issued the guide that provides:

• The registered doctor / medical board should not only consider the criteria in section 3(2-b) (allows termination of a pregnancy between 20 and 24 weeks if two doctors agree that continuing the pregnancy would endanger the life or health of the woman or causes serious abnormalities in the fetus) of the Medical Termination of Pregnancy Act, but also assesses the physical and emotional well-being of the pregnant person.
• The registered doctor/medical board must state in his report whether the continuation of the pregnancy to term would affect the physical and mental health of the pregnant woman.
• The registered doctor / medical board should also determine whether the pregnancy can be safely terminated at this stage without harming the pregnant person.
• The Court further observed that the doctor or medical board “must not limit themselves to the criteria” of Section 3(2-b) of the MTP Act, they must also consider the general physical and emotional well-being of the pregnant person .

“Needless to say, these guidelines are not exhaustive and the Registered Medical Practitioner/Physician/Council is at liberty to state any additional facts/opinion he deems necessary in the facts of each case.”, added the High Court.

The court ordered while hearing the plea of ​​the girl’s father to seek termination of pregnancy. The FIR was registered under NBS (Bhartiya Nyaya Sanhita), 2023 Sections 87 (relates to abducting, abducting or causing a woman to be forced into marriage or unlawful sexual intercourse), 64(2)(m) (punishment for repeatedly raping the same woman) and Sections 4 (punishment for penetrative sexual assault) and 6 (punishment) for sexual assault with aggravated penetration) from the POCSO Law, 2012.

In the application, it was submitted that the 16-year-old girl eloped with the accused, who cheated her with the false promise of marriage, although he knew that she was a minor. During the ongoing investigation, it was discovered that the girl is pregnant.

The petitioner father claimed that this fact came to his knowledge on 14th October and after examination of the girl at Radiodiagnosis Department, Jamnagar, that she was 21 weeks and 6 days pregnant. Furthermore, he claimed that the victim, being a minor and alleged survivor of the rape, is physically unable to care for the child. Continuing the pregnancy would cause her severe mental, physical, emotional and social trauma, negatively impacting her life, he said.

When the matter came up for hearing in its October 30 order, the court directed the concerned authority to assess her mental and physical health and submit a report by November 7 indicating whether the termination of the pregnancy would have a significant impact.

On November 7, the High Court held that the reports submitted by the head of the Hospital Section expressing the opinion of the panel of gynecologist experts for the termination of the pregnancy. He also took note of an affidavit submitted on behalf of the petitioner stating the consent of the victim for the termination of pregnancy. The affidavit stated that the petitioner was also informed of the risk of a potential complication associated with termination of pregnancy and that the petitioner and the victim understand the medical complication and possible outcome of the procedure and that the petitioner and the victim are ready and willing to proceed with termination of the victim’s pregnancy and that the victim’s consent was also obtained

Justice Thakkar further observed “It is the case of the present petitioner that considering the victim’s age which is only 16 years and 2 months, the victim will not be fit for the responsibility of raising the child at this young age and that if the victim continues with the pregnancy, it would adversely affect her physical and mental health. At this stage, the Court must consider the decision in the victim’s “best interest” and take into account her trauma, mental agony and the possibility of social ostracism to continue the pregnancy.”

The court also noted that the November 4 report suggested continuation of the pregnancy, but this was later revised on November 7, stating that continuation of the pregnancy would harm the victim’s physical and mental health. He also noted that although there are risks, a medical abortion is possible. The victim’s father confirmed that he understood the risks, and both the victim and her father consented to the abortion.

“Looking at the facts of this case and the fact that the victim, who is 16 years of age, the victim would suffer serious injury to her mental and physical health if she is forced to continue the pregnancy at such a young age apart from the above. the victim will also suffer from social stigmatization“, he said.

The Court later observed that although the pregnancy is at 24 weeks and 5 days, the risk of termination is not greater than the risk of full term delivery. Medical experts, in a report dated 07.11.2024, confirmed that continuing the pregnancy would seriously harm the victim and agreed that medical termination of pregnancy is possible.

It subsequently continued to allow termination of pregnancy taking into account the consent of the victim and her guardian and set conditions:

• the procedure will be done with expert doctors present, who will explain the risks to the victim and his family,
• all necessary medical care, including pediatric and radiological assistance, will be provided during the procedure,
• post-operative care will be provided as appropriate.
• if the fetus is alive, medical assistance will be given, either in the hospital or in another facility;
• a DNA sample from the fetus will be taken for identification and sent to the investigating officer.
• the state will cover all medical expenses.
• the victim will remain in the hospital until discharged by doctors once they are stable.

The court then disposed of the petition and directed that the order be forwarded to the APP and the concerned hospital and investigating officer to take necessary action.

Case Title: XYZ Through Her Father v/s State of Gujarat & Anr.

Click here to read/download the order