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Kerala High Court allows termination of 15-week pregnancy of mentally-challenged rape victim

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The Kerala High Court has directed for abortion of an over 15-week-old foetus of an intellectually-disabled rape victim, citing that it was in her best interests as she was incapable of making an informed decision on her own.

A Single Bench of Justice P. B. Suresh Kumar on Monday passed this order, while hearing a petition filed by the Kerala State Legal Services Authority.

In this petition, the victim was found wandering within the limits of Kazhakootam Police Station and was taken by the Police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre, Peroorkada. The Medical Board at the Mental Health Centre found her pregnant, with the gestation period of foetus corresponding to eight weeks as on June 4, 2021.

As her relatives could not be traced, the Superintendent of the Mental Health Centre apprised the District Legal Services Authority about the plight of the victim.

The writ petition has been filed by the Kerala State Legal Services Authority, seeking permission for medical termination of the pregnancy of the victim, alleging that in terms of the provision contained in Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971(the Act), the victim being a major, her consent is required for terminating the pregnancy, and the victim is not in a position to grant consent for termination of the pregnancy.

“The certificate issued by the Medical Board attached to the Mental Health Centre, Peroorkada indicates that the victim is suffering from mental retardation with psychosis and is under treatment as an inpatient. It is recited in the said Certificate that the victim is unable to take decision or communicate her opinion,” the Court noted.

In terms of the interim order passed by the Court on June 16, 2021, the Permanent Medical Board attached to the sixth respondent (Superintendent, Sree Avittom Thirunal Hospital) hospital was directed to examine the victim and submit a report on the aspects.

The report was submitted by the Medical Board, stating among others, that though continuation of the pregnancy does not endanger the life of the victim, there is a high risk for the mother and baby, as the victim is on multiple anti-psychotic medication.

“The pregnancy of the victim in the case on hand is one that could be terminated on the basis of the opinion of a registered medical practitioner that the continuance of pregnancy would involve a grave injury to her mental health, in terms of the provisions of the Act since its length does not exceed 20 weeks.

“Even otherwise, in the light of the provision contained in sub-section (2)(b)(i) of Section 3 of the Act and Explanation 2 to the said sub-section, the pregnancy is one that could be terminated on the basis of the opinion of two medical practitioners on the above lines. As noted, the impediment in the matter of terminating the pregnancy of the victim is that she is not in a position to give consent for the same”, the Court observed.

“The doctrine of ‘parens patriae’ has been evolved in common law and is applied to situations where the State must take decisions in order to protect the interests of those persons who are unable to take care of themselves. This doctrine has been applied in cases involving rights of minors and those persons who have been found to be mentally incapable of taking informed decisions for themselves.

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“It is seen that courts in India have evolved different tests, while exercising the ‘parens patriae’ jurisdiction for the purpose of making reproductive decisions on behalf of mentally ill persons. One among the said tests is the test of ‘best interests,’ which requires the court to ascertain the course of action, which would serve the best interests of the person in question.

“Reverting to the facts, having regard to the fact that the person involved in the case is a rape victim and considering the opinion of the Medical Board, I am of the view that in a case of this nature, it is in the best interests of the person concerned to permit termination of her pregnancy”, the order reads.

Accordingly, the Court allowed the writ petition and respondents are permitted to terminate the pregnancy of the victim involved in the matter at the earliest in accordance with the provisions of the Act, without insisting on the consent of the victim. Having regard to the fact that the person is a rape victim, there will also be a direction to respondents to take the tissue of the fetus and maintain the same for DNA examination,” the Court ordered.

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