‘Don't agree to be party to foeticide': Delhi HC stays termination of 27-week pregnancy of minor rape survivor after AIIMS cautions
The 16-year-old girl approached the Delhi High Court through her mother last month, seeking permission to terminate an approximately 26-week pregnancy. In response to the court's request for a medical opinion on the termination, the AIIMS New Delhi medical board recommended against the procedure.
The medical board noted that the fetus is viable and 'at this gestational age, medical termination of pregnancy, if undertaken, entails significant risks, including a higher likelihood of caesarean section, which could adversely affect her future reproductive health'.
'The medical board feels that continuation of the pregnancy for at least 8 more week is expected to offer a more favourable neonatal outcome,' the board opined in its report on June 28.
It also said that if the court considers permitting termination of pregnancy at this stage, 'clear guidance would be necessary on the management of the live fetus/neonate, particularly with respect to decisions on feticide (if permissible under law) or adoption post-delivery, given the viability of the fetus at this gestational age'.
On June 30, Justice Manoj Jain, taking into consideration 'the grave mental injury and trauma inflicted upon the mind of minor, on account of sexual assault in question', permitted the termination. For management of the fetus, if born alive, the single judge had further directed, 'If the child is born alive, Medical Superintendent, AIIMS in conjunction with the State Authorities would ensure that every possible and feasible assistance is offered to such child.'
Appealing against the order, AIIMS New Delhi, told the Delhi High Court that having regard to totality of circumstances, the direction issued by the single judge for making arrangements for medical termination of pregnancy of a minor and a victim of crime of rape is in derogation of provisions of MTP Act 1971. It also says the orders areuns contrary the to medical opinion expressed by the medical bo,ard comprising medical experts from AIIMS, which included a psychiatrist as well.
A division bench of Chief Justice D K Upadhyaya and Justice Anish Dayal Thursday requested assistance from the members of the medical board. In the second half of the court session, Dr K Aparna Sharma and Dr Jyoti Meena, two members of the medical board who are professors in the Department of Obstetrics and Gynaecology at AIIMS New Delhi, appeared before the court.
The doctors informed the court that 'termination of pregnancy is safer at 34 weeks, than now', as inducing labour towards the end of the pregnancy makes it easier for the uterus to respond. The experts also made it clear that in such a case, foeticide will have to be performed to ensure that the baby born is not alive.
Following the opinion by the AIIMS experts, CJ Upadhyaya, addressing the counsel for the minor survivor, orally remarked, 'Termination of pregnancy here would mean delivery of a child… it is is not an induced abortion, it is foeticide… unless medically required, it is a criminal offence… Asking us to be party to foeticide, which is permissible for medical requirements only, that I do not agree to.'
The bench suggested that the counsel for the minor survivor convince them to carry out the pregnancy while assuring free medical services for both the survivor and the to-be-born child for the next five years, free of charge, at the AIIMS. The bench also offered that they may further issue directions to the Delhi government to ensure the education of the survivor free of cost until Class 10, as well as assisting the survivor in giving up the child for adoption if she so decides ultimately.
The counsel, after consulting with the survivor's mother, informed the bench that they are currently open to the option of carrying the pregnancy to full term. However, they are unable to make any decisions regarding adoption at this time and will need the survivor's consent. It was also mentioned that the survivor has only completed education up to Class 2.
The bench directed that the survivor should remain admitted in AIIMS for the entire gestation period of 34 weeks or even more if required, till she delivers the child, and should be permitted to stay in the hospital in AIIMS until she becomes medically fit after delivery.
Noting that the 'facts and circumstances of this case are very unfortunate, unpleasant and precarious situation where the court has to ensure the welfare of both the minor rape victim as also the child to be born', the court also sought an affidavit within two weeks from the Delhi government's department of women and child development. The affidavit must detail all the assistance it can provide to the survivor and the baby to be born, including facilities for education, skill development, and vocational training.
The court kept the appeal pending and posted it for consideration next on October 15.
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