Kerala HC permits abortion of 15-week plus pregnancy of mentally challenged rape victim

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Kochi: Taking on the role of 'parens patriae' or legal protector of citizens, the Kerala High Court has permitted termination of an over 15-week pregnancy of a mentally challenged rape victim on the ground that it was in her best interests as she was incapable of taking an informed decision on her own.

The high court permitted the Government Mental Health Centre and the Sree Avittom Thirunal Hospital, both in Thiruvananthapuram, to carry out the medical termination of pregnancy.

The hospitals were also directed to take the tissue of the foetus and maintain the same for DNA examination as the woman, who hails from Bihar, was a rape victim.

Justice P B Suresh Kumar took the decision based on the report of a medical board which after examining the woman had opined that though the continuation of the pregnancy does not endanger the life of the victim, there was a high risk for the mother and baby as she was on multiple anti-psychotic medication.

A certificate issued by the medical board attached to the Mental Health Centre also indicated that the victim was suffering from mental retardation with psychosis and was unable to take decisions or communicate her opinion, the court noted in its order.

"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," the judge said.

The matter was brought to the attention of the court by the Kerala State Legal Services Authority which had espoused the cause of a hapless rape victim diagnosed with psychosis.

The victim was found wandering within the limits of Kazhakoottam Police Station in Thiruvananthapuram and was taken by the police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre in Peroorkada.

The medical board at the Mental Health Centre found the victim to be pregnant, having a gestation period corresponding to eight weeks as on June 4 and as the relatives of the victim could not be traced, the Superintendent of the Mental Health Centre apprised the plight of the victim to the District Legal Services Authority.

Subsequently, the writ petition was filed by the Kerala State Legal Services Authority seeking permission for medical termination of the pregnancy of the victim as she was not in a position to grant consent for the same.

The court observed that in the instant case the pregnancy was one which could be terminated on the basis of the opinion of a registered medical practitioner that the continuance of the pregnancy would involve a grave injury to her mental health, since the gestation period was not more than twenty weeks.

Even otherwise, the pregnancy was one that could be terminated on the basis of the opinion of two medical practitioners on the above lines, the court said and added that the only impediment in the matter was that the victim was not in a position to give consent for the same.

The court, thereafter, donned the mantle of 'parens patriae' or legal protector of the citizens, a concept evolved in common law and applied to situations where the State must take decisions in order to protect the interests of those persons who are unable to take care of themselves.

"This doctrine has been applied in cases involving rights of minors and those persons who have been found to be mentally incapable of taking informed decisions for themselves," the court said.

It further said 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," it added.  

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