‘Right to bodily autonomy’: HC allows 17-year-old sexual assault survivor to terminate 28-week pregnancy

MUMBAI: The right to decide whether to carry a pregnancy to term is “firmly rooted” in a woman’s bodily autonomy, and forcing her to continue an unwanted pregnancy causes “visceral trauma”, the Bombay High Court has observed while allowing a 17-year-old sexual assault survivor to terminate her 28-week pregnancy

MUMBAI: The right to decide whether to carry a pregnancy to term is “firmly rooted” in a woman’s bodily autonomy, and forcing her to continue an unwanted pregnancy causes “visceral trauma”, the Bombay High Court has observed while allowing a 17-year-old sexual assault survivor to terminate her 28-week pregnancy. The court emphasised that such a decision must also take into account the physical and mental transformation a woman’s body undergoes during pregnancy.

A vacation bench of Justices Advait M Sethna and Ranjitsinha Raja Bhonsale allowed the minor’s plea on November 9, after personally interacting with her and considering a report submitted by a medical board constituted at Sir JJ Group of Hospitals. During the interaction, the Class 12 student told the court that she was not psychologically prepared to bear a child.

The minor alleged that a 19-year-old acquaintance had forcibly established physical relations with her when she was alone at home. On November 2 this year, she discovered that she was seven months pregnant and subsequently lodged an FIR at Bhoiwada police station under the Pocso Act and the Bharatiya Nyaya Sanhita.

The medical board at JJ Hospital found that the foetus did not suffer from any lethal congenital anomalies and concluded that termination could be performed, subject to the High Court’s permission.

During the hearing, the minor’s father informed the court that his daughter wanted to terminate the pregnancy as she was underage, worried about her future and medically fit to undergo the procedure. The petitioner’s lawyer argued that the minor was entitled to live with dignity, including the right to sexual and reproductive freedom guaranteed under Article 21 of the Constitution.

During their interaction with the minor and her parents, the judges explained that since the pregnancy was at an advanced stage, there was a possibility that the foetus could be born alive and would require intensive medical care. The parents, however, told the court that they were not financially equipped to look after a newborn. The minor also maintained that, given her young age, family background and the circumstances surrounding the pregnancy, she was determined to terminate it.

Taking note of these circumstances, the High Court relied on a Supreme Court ruling which held that when a woman is determined to terminate her pregnancy and has detached herself from it, considerations such as whether the child would be born healthy or whether the foetus is viable become irrelevant to the decision, as they denote the irrelevance of foetal viability.

Allowing the plea, the High Court permitted the minor to undergo the termination procedure at Sir JJ Hospital. It also made provisions for the eventuality of the child being born alive. The court said that if the minor wished to give the child up for adoption after delivery, the state and its agencies would “assume complete responsibility of the child and take necessary steps to rehabilitate the child, including placing the child in foster care or adoption by following due legal process”.

“Under no circumstances, the child, if born alive, must be neglected or left to perish or completely at the hands of fate, which is as uncertain as is unknown. The state shall abide by the wishes of the petitioner expressed at the appropriate stage and in any case, take due care of the child born alive after delivery in every possible manner, so that the child is not left unattended, lonely and abandoned,” the court directed.