Kerala High Court allows termination of pregnancy of mentally disabled rape survivor from Bihar

The Kerala High Court on Monday permitted medical termination of the pregnancy of a rape survivor who also suffers from severe mental illnesses (Kerala State Legal Services Authority v Union of India)..The Court also ordered that a DNA examination of the foetus be conducted to determine the identity of the person who raped and impregnated the woman."Having regard to the fact that the person involved in the case is a rape victim and considering the opinion of the Medical Board, I am of the view that in a case of this nature, it is in the best interests of the person concerned to permit termination of her pregnancy. In the result, the writ petition is allowed and respondents are permitted to terminate the pregnancy of the victim involved in this matter at the earliest in accordance with the provisions of the Act, without insisting on the consent of the victim. Having regard to the fact that the person is a rape victim, there will also be a direction to respondents to take the tissue of the fetus and maintain the same for DNA examination," the order said. .Single-judge Justice PB Suresh Kumar applied the doctrine of parens patriae to permit termination of pregnancy despite the woman not being capable of giving consent to the same.The Court stated that it is its the duty to determine the course of action which would serve the best interests of such persons."It is seen that courts in India have evolved different tests while exercising parens patriae jurisdiction for the purpose of making reproductive decisions on behalf of mentally ill persons. One among the said tests is the test of “best interests” which requires the court to ascertain the course of action which would serve the best interests of the person in question," the Court said. .The order was passed on a petition filed by the Kerala State Legal Services Authority espousing the cause of an unfortunate victim of rape who had also been diagnosed with psychosis. The woman, who hails from Bihar, was found roaming the streets and was taken by the Police initially to a psycho-social rehabilitation centre and then to mental health centre.As the relatives of the victim could not be traced, the case was referred to the Kerala State Legal Services Authority who approached the Court seeking orders granting permission for medical termination of the pregnancy.It was submitted that although as per Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971(the Act), the consent of the woman, who is a major, is required for terminating the pregnancy, she is not in a position to grant consent at this time.A certificate issued by the Medical Board attached to the Mental Health Centre was submitted which stated that the woman suffers from mental disabilities with psychosis and is under treatment as patient. The Court had earlier instructed the Medical Board to submit a report as to the present condition of the woman. It was stated in the report that though continuation of the pregnancy does not endanger the life of the victim, there is a high risk for the mother and baby, as the victim is on multiple anti-psychotic medication..The Court observed that the pregnancy of the victim in the case on hand is one that could be terminated on the basis of the opinion of a registered medical practitioner, in terms of the provisions of the Act since its length does not exceed twenty weeks. In the present case, the impediment in terminating the pregnancy of the victim, the Court noted, was her inability to give consent for the same..Justice Kumar applied the doctrine of pares patriae to this situation and opined that the State must take decisions in order to protect the interests of persons, such as the victim, who have been found to be mentally incapable of taking informed decisions for themselves.The Court, therefore, issued the order permitting the Government Mental Health Centre and Sree Avittom Thirunal Hospital to carry out the medical termination of pregnancy and directed them to collect a DNA sample from the foetus as well..[Read Judgement]