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It is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion, the top court has said.
The Supreme Court on Monday allowed a 25-year-old rape survivor to terminate her 27-28 week pregnancy noting that it was not a voluntary or mindful pregnancy.
"In Indian society, within the institution of marriage, generally pregnancy is a reason for joy and celebration and of great expectation, not only for the couple but also for their families and friends. By contrast, pregnancy outside marriage, in most cases, is injurious, particularly, after a sexual assault/abuse and is a cause for stress and trauma affecting both the physical and mental health of the pregnant woman the victim...", observed a bench of Justices BV Nagarathna and Ujjal Bhuyan.
The division bench has further observed that in context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy.
"Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women...", the order adds.
In view of such observations, court directed the woman to remain present before the KMCRI Hospital, Bharuch, Gujarat for carrying out the termination of her pregnancy.
Noting that the woman was almost 7 months pregnant, the top court ordered that in the event, the foetus is found to be alive, the hospital shall give all necessary medical assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives.
A further direction has been made that medical experts may check feasibility of preserving evidence for subsequent DNA Test Report by drawing tissues from the foetus in order to use it as a piece of evidence in the ensuing trial, and such a procedure being done, in the event of the foetus being alive or in the event the foetus not being alive or is still born and accordingly take steps as sought for.
Notably, the top court also came down heavily on the Gujarat High Court in the present matter while saying that no judge can pass an order as a counterblast to the Supreme Court of India.
Justice Nagarathna made this remark in light of the Gujarat High Court's order from August 19, Saturday evening, wherein it had, in complete contravention of the top court's order issued earlier that day, asked a 25-year old rape survivor to go ahead with her unwanted pregnancy.
"This kind of an order as a counterblast to Supreme Court's order...we do not appreciate this..What is happening in Gujarat High Court...Do judges over there retort like this..", a visibly miffed Justice Nagarathna said.
On Saturday, the same bench had pulled up the Gujarat High Court for its lackadaisical attitude in dealing with the 25-year old's case. Top Court was further informed that after a medical board was constituted by the High Court, which submitted its report on August 11, 2023, the High Court went on to adjourn the case for over 12 days.
Inquiring about the High Court's order, Justice Nagarathna had then said, "What is the order that came on 11 August? standover to 23rd for what purpose..how can the court say this..how much valuable time is lost by such an order..".
Case Title: XYZ vs. State of Gujarat
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