Bombay HC Allows 12-Year-Old Rape Survivor to Terminate 28-Week Unwanted Pregnancy, Upholds Bodily Autonomy

Emphasising that forcing a rape survivor to carry an unwanted pregnancy would strip her of her dignity and autonomy, the Nagpur bench of the Bombay High Court has recently allowed a minor rape victim to terminate her pregnancy of 28 weeks under the Medical Termination of Pregnancy (MTP) Act.

A division bench of Justices Nitin Sambre and Sachin Deshmukh, in its order, said, "In the aforesaid background and having regard to the law laid down by the Apex Court in the aforesaid three judgments, it has to be inferred that this Court cannot force the victim to carry her pregnancy against her wish as in such an eventuality, the State would be stripping her of the right to determine the immediate and long-term path of her life."

Observing that a woman can become pregnant by choice irrespective of her marital status, the court asserted that in the case of unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman/victim.

A 12-year-old rape survivor had filed a plea before the high court through her father, seeking permission under the MTP Act to terminate her 28-week pregnancy.

The pregnancy resulted from an alleged act of rape by the minor's cousin's uncle. Following this, a First Information Report (FIR) was registered under Sections 64(2)(f), 64(2)(m), 65(2), and 351(2) of the Bharatiya Nyay Sanhita, 2023, along with Sections 4 and 6 of the POCSO Act, 2012.

Appearing for the petitioner, Advocate Soniya Gajbhiye invoked the minor’s constitutional right to privacy and bodily autonomy.

High Court relied on the Medical Board’s report, which stated:

“Key recommendations of the panel (if any) with justification: The process of termination of pregnancy is a high risk considering her age and fetal gestational age. Hysterotomy can be done with high-risk consent of parents and assent of the patient.”

Since the Board did not indicate any life-threatening risk if the procedure was carried out, the court accordingly directed the Dean, Government Medical College, Akola, to permit the petitioner to undergo medical termination of pregnancy at the earliest, by taking recourse to the safety protocol and complying with the aforesaid observations.

While allowing the petition, the judges placed heavy reliance on the Supreme Court's judgment in X v. Principal Secretary, Health & Family Welfare Dept., NCT of Delhi, wherein the top court had recognised a woman’s right to reproductive autonomy and her sole authority to decide about abortion.

The bench also acknowledged the psychological trauma caused by pregnancies resulting from sexual assault and reiterated the significance of a woman’s consent in such matters.

“We, however, clarify the statement made by the counsel for the petitioner, on instructions from the parents of the victim, that they are willing to furnish an undertaking of high-risk consent, and the assent of the patient be also made part of the medical record,” the court noted, as it concluded the matter.

Case Title: XYZ versus Union of India