Mentally challenged rape survivor can abort 22-week-old foetus, rules Bombay high court

The Bombay high court also held that the legal guardian of a mentally challenged rape survivor can make a decision on her behalf

Recognising a woman’s right to terminate an unwanted pregnancy, the Bombay high court allowed a mentally challenged rape survivor from Nandurbar district to abort her 22-week-old foetus on Tuesday.

The high court said it was important to recognise that “reproductive choice can be exercised by a woman to procreate, as well as to abstain from procreating.” (HT File)

“The pregnancy was the result of physical abuse. She has a choice — either to continue the pregnancy or to get the foetus medically terminated,” said a bench of justices RM Borde and Vibha Kankanwadi. “The freedom of making choices is an integral part of a woman’s personal liberty and cannot be taken away,” it added.

The bench relied on a 2009 decision of the Supreme Court, which held that a woman’s right to make reproductive choices was a dimension of her “personal liberty” guaranteed under Article 21 of the Constitution.

The bench also held that the legal guardian of a mentally challenged rape survivor can make a decision on her behalf. “In this case, the survivor is deaf, dumb and mentally challenged. She is thus unable to make a choice on her own. She has no such intellectual capacity, and thus, her guardian should be given that right to make choice,” the bench said.

The girl’s mother said an unidentified person took advantage of the girl’s condition and raped her. On November 2, doctors refused to terminate her daughter’s 18-week-long pregnancy despite it being permitted under provisions of the Medical Termination of Pregnancy Act. The woman had approached the high court, saying the doctors’ refusal was because the girl was mentally challenged and thus incapable of consenting.

On the basis of the woman’s complaint, the local police registered a case of rape against an unknown person.

“It would be hazardous to ask her to bear the pregnancy. It is not only dangerous to her, but also to the unborn child also,” said the high court.