Why Uttarakhand High Court’s order to allow rape survivor to terminate 28-week foetus is significant

“There is a right to terminate pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act (the Medical Termination of Pregnancy Act).” With these words, the Uttarakhand High Court allowed the termination of a 28-week foetus of a 16-year-old rape victim. We examine the facts of this case, what the abortion laws state in India and why this high court dikta could be hailed as momentous for women in India. The Uttarakhand case According to a LiveLaw report, the petitioner, aged about 16 years, approached the court through her father, seeking permission to terminate her pregnancy. During her medical investigations for the rape case, it was confirmed that the teen had a Single Live Intrauterine Foetus of 27 weeks 4 days (+) 15 days. The Medical Board had in its report stated that ‘considering the risk to mother and foetal viability, it was not advisable to terminate the pregnancy’. The Medical Board further opined that there was a substantial risk to the life of the petitioner, if the termination took place. However, the petitioner argued that being forced to continue with the unwanted pregnancy was extremely deleterious to her mental and emotional well-being. Hearing the case, the Single Judge Bench of Justice Alok Kumar Verma was quoted as saying, “Right to life means something more than survival or animal existence. It would include the right to live with human dignity. The father of the minor petitioner has expressed that the petitioner is not in a position to continue the pregnancy and if the petitioner is not permitted to terminate her pregnancy, there is possible grave injury to her physical and mental health.” The judge also raised the point that Explanation 2 to Section 3(2) of the Medical Termination of Pregnancy (MTP) Act, there is a presumption that pregnancy through rape can be constituted as grave injury to the mental health of the pregnant woman. LiveLaw quoted the judge as saying, ““In these circumstances, if the petitioner is compelled to continue with her pregnancy, it would infringe her right to live with human dignity, guaranteed under Article 21 of the Constitution of India. Therefore, in the present facts and circumstances, this Court considers it appropriate in the interest of justice to permit the petitioner to undergo medical termination of her pregnancy…” What the MTP Act says The Medical Termination of Pregnancy (MTP) Act, 1971, was amended in April 2021 expanding the access to safe and legal abortion services. The new legislation meant the upper gestation limit for several categories — including survivors of rape, victims of incest and other vulnerable women — was increased from 20 weeks to 24 weeks. Under the Indian Penal Code it’s a crime to get an abortion, but with the MTP in place, exceptions are permitted in such instances. Others can also get the procedure if they have the consent of the doctor before 20 weeks. Finally, the bill introduced a confidentiality clause, under which the name and other particulars of women cannot be revealed except to a person who has been authorised by law. The new rules aimed to extend MTP services to unmarried women under the failure of contraceptive clause, providing access to safe abortion by choice and not marital status. Other such instances This is not the first time that a woman has knocked the doors of the judiciary to allow a termination of a pregnancy. In September 2017, the Supreme Court allowed a 13-year-old girl from Mumbai to abort her 31-week-old foetus, even though it was healthy and did not have any abnormalities. The minor got pregnant as a result of rape. According to a report in Scroll, the decision was made “keeping in mind the age of the petitioner and the trauma she has faced” Chief Justice Dipak Misra said in his order. However, in another instance, the Supreme Court in January 2020, dismissed a plea seeking its nod for terminating the 32-week-old pregnancy of a 10-year-old rape survivor after taking note of a medical report that abortion was neither good for the girl nor for the foetus. In April 2020, the Kerala High Court allowed the termination of 24-week pregnancy of a minor rape survivor in the state. An IndiaToday report stated that the division bench comprising Justices AK Jayashankaran Nambiar and Shaji P Chaly passed an order which said that the continuation of the pregnancy would pose risk to the mental and physical health of the 14-year-old rape survivor. Noting the ‘difficult and disheartening situation’, the bench also observed that the “right to make reproductive choices is a facet of personal liberty under Article 21”. Why these decisions are significant These decisions taken by the judiciary are momentous and significant in the debate of women’s rights and abortions in India. Research shows that forcing a woman to go ahead with a pregnancy against her will increases their risk of depression by 20 per cent. Being denied abortion can also lead women to struggle with anxiety and low self-esteem, studies show. Unwanted pregnancies also often result in higher rates of perinatal mortality and postpartum complications too. The Swaddle, an independent media company based in Mumbai, states that by accepting the mental health of women, who are forced to carry unwanted pregnancies to term, while living with the trauma of sexual assault, sets a much-needed precedent. With inputs from agencies Read all the Latest News , Trending News ,  Cricket News , Bollywood News , India News and Entertainment News here. Follow us on Facebook, Twitter and Instagram.