Reproductive Autonomy Overrides Foetal Viability: Bombay High Court Permits 28-Week MTP For Minor Rape Survivor

"The reproductive autonomy and bodily integrity of a pregnant woman must be given sufficient emphasis over the rights of unborn foetus. Moreover, the right to choose whether to carry a pregnancy to term is firmly rooted in her right to bodily autonomy, noting that forcing a woman to continue an unwarranted pregnancy causes visceral trauma and ignores the physical and mental transformation that a woman’s body undergoes," Bombay High Court

MUMBAI: In an urgent vacation sitting, the Bombay High Court on Monday observed that a pregnant minor’s decisional autonomy and mental integrity take precedence over foetal viability considerations, permitting a 17-year-old sexual assault survivor to terminate her 28-week pregnancy. A Division Bench comprising Justice Advait M. Sethna and Justice Ranjitsinha Raja Bhonsale held that compelling a minor victim from an economically disadvantaged background to carry an unwanted pregnancy to term would inflict irreparable psychological harm, violating her fundamental rights under Article 21 of the Constitution of India.

The minor petitioner, aged 17 years and 7 months, was subjected to sexual assault under the pretext of acquaintance, resulting in an FIR registered under Sections 4, 4(1), 6, and 10 of the Protection of Children from Sexual Offences Act, 2012, read with Section 64(1) of the Bharatiya Nyaya Sanhita, 2023. She discovered her pregnancy at an advanced stage of over 27 weeks following medical consultation in November 2026. Given the statutory threshold of 24 weeks prescribed under the Medical Termination of Pregnancy Act, 1971, she approached the High Court alongside her father seeking permission for termination.

Whether a minor sexual assault survivor can be permitted to terminate an advanced 28-week pregnancy under the Medical Termination of Pregnancy Act, 1971 when the statutory limit of 24 weeks has expired but carrying the child threatens her psychological well-being?

Whether foetal viability and the potential of a live birth preclude the exercise of writ jurisdiction permitting medical termination of pregnancy?

What are the binding obligations of treating medical practitioners and the State towards a child born alive during the course of a court-permitted termination procedure?

The Court interacted in chambers with the minor petitioner and her parents to ascertain their views and informed consent after reviewing the report of the Medical Board constituted at Sir J.J. Group of Hospitals, Mumbai. The medical board had opined that while the foetus had reached 28 weeks of gestation without congenital anomalies, continuing the pregnancy would cause grave and irreparable harm to the survivor's psychological health and mental well-being.

Minor's unequivocal refusal to continue pregnancy must be respected

The Bench observed that the petitioner was physically and emotionally unready to bear a child, having completely detached herself from the pregnancy. The Court underlined that forcing her to endure the gestation would result in severe trauma given her delicate age and family background.

"The Petitioner No. 1 in her quite elaborate interaction with us after being made aware of the totality of the facts and circumstances including the opinion of the Medical Board, has clearly conveyed that she does not desire to continue with the pregnancy under any circumstances whatsoever."

Foetal viability is secondary to pregnant female's decisional autonomy

Relying upon the Supreme Court's precedent in A (Mother of X) v. State of Maharashtra, the Bench highlighted that when a woman has made a resolute choice to terminate an unwanted pregnancy resulting from sexual assault, foetal viability cannot operate as an absolute legal bar.

"The Supreme Court further observed that when a pregnant woman is determined to terminate and has detached herself from the pregnancy, consideration such as whether the child would be born healthy or is viable, denote irrelevance of foetal viability, in other words, are not relevant."

State obligated to assume custody and medical care if neonate is born alive

Addressing the clinical possibility that the foetus might be born alive and require neonatal intensive care, the Bench referred to earlier coordinate bench rulings, emphasizing that under no circumstances must a newborn be abandoned or neglected if the biological family is incapable of assuming custody.

"Under no circumstances, the child, if born alive in the present case, must be neglected or left to perish or completely at the hands of fate which is as uncertain as is unknown. This particularly, in a situation like present, where the women or her family members may not be in a position or are not willing to assume responsibility of the to be born child."

Directions issued to prevent medical negligence during post-termination care

Recalling a tragic instance before the Kolhapur Circuit Bench where a live-born child died due to medical inaction, the Court issued strict directives ensuring complete post-delivery care, neonatal life support, and immediate intervention by State adoption and child protection agencies under the Juvenile Justice (Care and Protection of Children) Act, 2015.

Allowing the writ petition, the High Court granted permission for the minor petitioner to undergo the medical termination of her pregnancy at Sir J.J. Group of Hospitals, Mumbai, in accordance with the medical safeguards under the Medical Termination of Pregnancy Act, 1971. The Court directed the hospital to extend comprehensive pre- and post-operative medical attention and instructed State authorities to take full custody and rehabilitation responsibilities for the infant through formal foster care or adoption processes if the child is born alive.

Date of Decision: November 9, 2026