A rape survivor has the right to terminate her unwanted pregnancy, especially when it endangers her mental health, the Uttarakhand High Court ruled last Friday.

The petitioner, Ms. X, the 16-year-old survivor, approached the court through her father, seeking permission to terminate her pregnancy. The dilemma here is that Ms. X is 28-weeks pregnant and a medical board constituted under the orders of the court had stated that aborting a pregnancy at such an advanced stage could pose a “substantial risk to the life” of Ms. X.

Moreover, her pregnancy had also proceeded beyond the 24 weeks that is the new upper limit for abortion in India under the Medical Termination of Pregnancy (Amendment) Act, 2021. Earlier, the limit was set at 20 weeks under the Medical Termination of Pregnancy Act, 1971.

The petitioner, in this case, argued that being forced to continue with the unwanted pregnancy is extremely deleterious to her mental and emotional wellbeing.

Justice Alok Kumar Verma, who heard the matter, decided to honor the petitioner’s plea in favor of her “right to life.” He went on to state, “Right to life means something more than survival or animal existence. It would include the right to live with human dignity.”

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Further, Justice Verma referred to a provision in the new Act, which assumes injury to mental health as a result of surviving sexual assault resulting in pregnancy, noting “Where any pregnancy is… caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.” The law is also backed by psychiatric research, which states that for rape survivors, the prevalence of post-traumatic stress disorder, or PTSD, ranges from between 30-94%.

This led the court to decide that “if the petitioner is not permitted to terminate her pregnancy, there is a possible grave injury to her physical and mental health.”

Research also suggests that forcing a woman to go ahead with a pregnancy against her will increases their risk of depression by 20%. Being denied abortion can also lead women to struggle with anxiety and low self-esteem, studies show. Unwanted pregnancies also often result in higher rates of perinatal mortality and postpartum complications too.

“We experience events as traumatic when we are not able to escape them or are not able to exercise choice about what happens to our bodies and when and why,” explained Dr. Elisabeth Netherton, a psychiatrist from Houston.

As such, lending legal recognition to the mental health of women, who are forced to carry unwanted pregnancies to term, while living with the trauma of sexual assault, sets a much-needed precedent.

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Nonetheless, in order to ensure that the termination of the pregnancy doesn’t cost Ms. X her life, the court ordered that the procedure be carried out immediately, and by the senior-most gynecologist available — under the guidance of the medical board. Moreover, during the abortion procedure, if the surgeons believe Ms. X’s life is endangered, they will have to discretion to stop immediately.

However, access to qualified professionals also remains a concern for many Indian women. “The [MTP] Act requires abortion to be performed only by doctors with specialization in gynecology or obstetrics. As there is a 75% shortage of such doctors in community health centers in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions,” experts have flagged.

It is also unfortunate that a rape survivor has to jump through so many hoops to terminate a pregnancy that was forced upon her — perhaps, even complicating the trauma from the assault itself. While a medical board’s opinion may be relevant to assess the impact of the pregnancy on her health, a simpler process could, perhaps, help safeguard her mental health better.

“It is unfortunate that as a society we are still unable to ensure reproductive autonomy to our women, many of whom not only lack the freedom to plan pregnancies but also face multiple barriers when they seek abortions,” Poonam Muttreja, executive director at Population Foundation of India, an NGO, had told The Economic Times last year.

In a nutshell, the present judgment reiterates the position of law in India, thus: “There is a right to termination [of] pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act.”