Observes Right to Pregnancy Termination Not Absolute When Life Risks Are Involved
Srinagar, May 22 : The High Court of Jammu & Kashmir and Ladakh has refused permission for medical termination of pregnancy (MTP) of a minor rape survivor whose pregnancy had advanced to nearly 27 weeks, holding that constitutional courts cannot disregard expert medical opinion warning of serious danger to the life and reproductive health of the victim.
Justice Wasim Sadiq Nargal passed the judgment while hearing a petition filed on behalf of a nearly 14-year-old girl who conceived following sexual assault. The Court observed that while it remained sensitive to the trauma and psychological suffering of the victim, preservation of life under Article 21 of the Constitution remained the paramount consideration.
The Court noted that the Child Welfare Committee (CWC), Kulgam, had already declared the girl a “Child in Need of Care and Protection” and recommended urgent medical, psychological and legal assistance.
Following earlier court directions, a Medical Board examined the victim and submitted its findings in a sealed cover. The Board cautioned that termination of pregnancy at such an advanced stage carried severe medical and obstetric complications.
According to the Board, termination could lead to prolonged or failed induction, operative interventions including hysterectomy, excessive bleeding, infections, intensive care support, multiple blood transfusions and even long-term infertility. It also highlighted serious risks to the fetus, including respiratory complications, neonatal distress and possible fetal demise.
The Court held that once specialists had categorically warned about grave medical consequences, the judiciary could not substitute its own opinion over expert medical assessment merely on humanitarian considerations.
“Courts are not expected to replace the opinion of specialists and super specialists who are fully equipped to assess the medical feasibility and consequences of such procedures,” the judgment observed.
The High Court distinguished a recent Supreme Court ruling permitting termination of a 28-week pregnancy, pointing out that in that case the Medical Board had specifically declared the victim medically fit for the procedure, unlike the present matter where serious life-threatening risks had been highlighted.
The Court further observed that the right to seek termination of pregnancy cannot be treated as an unrestricted right detached from medical realities and expert evaluation.
Invoking the doctrine of parens patriae, the Court stated that where psychological trauma of continuing pregnancy conflicts with imminent medical danger arising from termination, the judiciary is duty-bound to prioritize preservation of life.
While rejecting the plea for MTP, the Court issued a series of directions to ensure the welfare, dignity, privacy and rehabilitation of the victim and the prospective child.
Government Lalla Ded Hospital, Srinagar, has been directed to provide complete pre-delivery and post-delivery medical care free of cost, including hospitalization, medicines, counseling, investigations and dietary support. The Medical Superintendent of the hospital has been designated as the nodal officer for coordination of treatment and healthcare requirements.
The SSPs of Kulgam and Srinagar have also been directed to provide security and ensure strict confidentiality regarding the identity and medical condition of the victim.
Referring to provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, the Court reiterated that a minor survivor of sexual assault qualifies as a “Child in Need of Care and Protection” and is entitled to institutional care, rehabilitation and statutory safeguards.
The Court also took note of steps initiated by Mission Vatsalya authorities regarding adoption-related procedures and care of the newborn in coordination with the Child Welfare Committee and Specialized Adoption Agency.
Disposing of the petition, the High Court directed the Medical Superintendent of Lalla Ded Hospital, the Nodal Officer of Mission Vatsalya and the SSPs of Srinagar and Kulgam to submit monthly compliance reports before the High Court Registry regarding the health, protection and overall welfare of the victim and the prospective child.
