Court
The court directed that the foetus be preserved for medical examination and DNA test in the criminal case registered against the relative who allegedly raped her.

A Madras High Court Division Bench comprised of Justices R Subbiah and R Tharani delivered a first of its kind order, allowing an 11-year-old sexual assault survivor to abort a 24-week-old foetus after doctors said that the pregnancy was risky.

A writ petition was filed by the girl’s mother with the Madurai bench of the Madras High Court seeking to terminate her daughter’s pregnancy. The Class VII student was allegedly raped by her nephew. While ruling in favour of the petitioner’s plea, the court also directed for the foetus to be preserved for medical examination and DNA test in the criminal case registered against the nephew. He has been booked under the Protection of Children from Sexual Offences (POCSO) Act and remanded to judicial custody.

The court had ordered the Dean of Government Rajaji Hospital in Madurai to form a medical board and examine the girl. The doctors filed the report which said that continuing the pregnancy could put the child at risks like anaemia, pregnancy induced hypertension, pre-term labour and a caesarean section at the time of delivery.

Apart from a risky second trimester, the board also pointed out to the court that there was increased morbidity risk for the mother and child both. “If the adolescent girl and her family opts for termination of pregnancy, termination can be done on the direction of the court at the earliest,” it added.

With a “heavy heart”, the judges directed the Dean to conduct the procedure without any delay and to provide all medical facilities for the child, monitor her health and also facilitate counselling to help her recover from the trauma.  

Under the The Medical Termination of Pregnancy Act, 1971, a pregnancy can be terminated only if the foetus is not more than 20 weeks old if the continuance of the pregnancy would entail risk to the life of the woman or if there is a risk of the child being born with physical or mental abnormalities or serious handicap.

However, the Supreme Court had last year allowed a Pune based woman to abort her 24-week-old pregnancy after medical reports observed that the foetus was without a scalp, would have a limited lifespan, and the pregnancy would pose serious risk to the mother as well. And in July 2016, the apex court had allowed a 26-year-old rape survivor to abort a 24-week-old foetus with severe abnormalities.

However, a 10-year-old survivor of sexual assault from Chandigarh was not allowed to do so when the medical board examined the girl and found that abortion of her 32-year-old foetus would pose risk to her life. Allegedly repeatedly raped by her uncle, she delivered a child via C-section. The child was not informed of her pregnancy and before undergoing the C-section, was told that the procedure was to remove a stone from her stomach.