WHY OPPOSING THE ABORTION OF CHILD PREGNANCY FROM RAPE?

Reading time : 8 minutes

Abstract

India’s heath care quality service is improving drastically. Medical practitioners make sure that the service they provide is legal and in good faith. The question arises when the rape victims who are pregnant especially the children who has sexually abused and conceiving can do abortion? In the Medical Termination Act only deals with women not children, the termination is no possible when the pregnancy period is more than twenty weeks. The reason for this is mainly because after twenty weeks mother’s life will be at risk. This paper focus on mainly three areas which are; Does the judiciary have the right to force a raped minor to give birth? Because of the delay in judicial proceedings the pregnancy period of the child is exceedingly more than twenty weeks, who could be responsible for this and how to solve this problem? After the birth of the child does the minor mother will get same opportunity and development as the other minors? If Yes then How? POCSO cases are increasing day by day. Most of the child are living under threat and many are living a traumatized life. Our society need to be capable of make the child heathy and safety.

Keywords: Sexual abuse, Pregnancy, Child, Judiciary

WHY OPPOSING THE ABORTION OF CHILD PREGNANCY FROM RAPE?

Introduction

There are many rights for the protection of children like, The United Nations Convention on Rights of Child (CRC), The Dead Sea Declaration, The World Convention on Human Rights (Vienna Convention). The main aim od this declaration is to protect children below the age of 18 from sexual abuse. Under Article 34 that Right granted to every child to be protected from sexual exploitation and abuse.[1]  In Indian Constitution Article 15(3) which allows the state to make special provisions for women and children, Article 21 ensuring Right to life, Article 39(e)-Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age and strength, Article 39(f) Childhood and youth of children to be protected from exploitation and material abandonment.[2]

Medical Termination of Pregnancy Act section 3 deals with when can a medical practitioner can terminate the pregnancy (a) when the length of the pregnancy not exceeding twelve weeks (b) when it exceeds twelve weeks but not twenty weeks (c) it should performed in good faith if the pregnant women’s life is at risk or if the child were born would suffer any physical or mental abnormalities. This section has explanation which stated that if the pregnancy occur due to rape termination of pregnancy is allowed.[3]

The POCSO 2012 requires that all registered medical practitioners render emergency medical care to attend to the needs of children who have been raped, including access to abortion. That the immediate treatment for survivors of rape must include emergency contraception and abortion services has also been clearly mentioned in policy guidelines issued by the Ministry of Health and Family Welfare in Guidelines and Protocols for medico-legal care for survivors/victims of sexual violence.3 In reality, however, rape survivors who become pregnant, both girls and women, face procedural gaps and a range of barriers in accessing abortion services.[4]

By UNICEF it states that abortion of a foetus from the pregnant girl’s womb is a means by which a pregnancy can be terminated. The decision to abort is a choice made by the pregnant girl after having considered several issues related to abortion. Focusing our attention on girl victims of sexual exploitation here we are able to say that minor girls are neither physically nor mentally prepared to bear children. For instance, a minor girl’s pelvis is not fully matured to bear a child as comfortably as an adult body would. This leads to severe bleeding which eventually is, however, controllable. Child victims themselves are of a very young age and considering that they have been subjected to repeated sexual contacts for the sole purpose of trade, one would assume that all pregnancies as a result of the sexual contacts are unplanned and, generally, even unwanted. If the girl wants to keep the child it may be supported by her rationale of emotional and economic security in later life or an obvious attachment if the baby is of a paramour. Either way, the focus should be on whether the girl is physically, emotionally, and socially capable of bearing and raising the child. Such girls thus face a double jeopardy, that of being helpless minors who are not only coerced into sexual contacts but also bear the repercussions of the act. Having to decide on how to deal with the 89 pregnancy is an issue for which they need immense support and guidance.[5]

While making decisions about abortion answering the following questions may help

• What will it mean to her personal future?

Which basically means does the girls will have all the opportunity as the others. In case of education, job opportunity and it also include peaceful life.

• Will it condemn her to a life of dependency and hardship?

At the age of 17 or 18 she has to take care of not only herself but also a child. Dose it leads to a life completely depended on others?

 • Can she assemble her own resources?

Will she be able to provide all the necessary requirements includes clothing, housing, sanitary and health care for both her and her child?

 • Can she meet the emotional and material obligations of parenthood?

Parenthood is something which have lot of responsibility at that age she has to be a mother of the child.

• How does she feel about other alternatives to abortion like adoption and foster care?

Is she willing to give her child to a family which take care of much better than she could?

• Would her circumstances permit her to complete the pregnancy and give up the child for adoption?

In the case of Marimuthu vs The Inspector Of Police on 19 September, 2016 the court held denial of termination of pregnancy by the medical practitioner and by the court. It was a 10-year-old girl in Chandigarh, who became pregnant after being sexually abused by her uncle. The district court and later the Supreme Court too, on the basis of medical opinion, denied permission for an abortion to the girl, who by then was 32 weeks into her pregnancy.  [6] In this case the medical examiner on the date of 15.04.2016, the Doctor gave the report that the minor girl was pregnant and the age of the womb was found to be 14 weeks. If the case held in a speedy manner it would be a safe abortion. In many cases the trial is not in an effective way the pregnancy period would not be extend. Children of tender ages will forget the incident soon especially in cases where there was no violence or injury. A speedy trial takes care of this situation.

There are several reasons why pregnancies are already at an advanced stage when they are discovered; these became clear during our interactions with the girls and their families. Child is very unlikely to realize that she is pregnant or that being raped could lead to a pregnancy, by the time one or more family members realize that something is not right, or that the child is pregnant, there has already been a delay of several months that is, until the pregnancy is visible. The older children, who may recognize that they are pregnant, may fear that their family members will not believe them. This too may contribute to delay in going to a health facility.[7] Other factors, such as fear from a threat by the abuser to her life or to her loved ones can also keep the child from disclosing the violence and its outcome.

Conclusion

For answering the questions – Does the judiciary have the right to force a raped minor to give birth?

Judiciary is not supposing to force to give birth to a Mainor who is sexually abused. Before deciding that opinion of the minor is very important. Is she physically and emotionally fine with the decision or it will lead her to live  a miserable life? Mainly a complete session about pregnancy and the consequence of pregnancy has to teach her then it is her decision to take. If it is after twenty weeks of pregnancy then she should also give an option to give the child for adoption.  

Delay in judicial proceedings the pregnancy period of the child is exceedingly more than twenty weeks, who could be responsible for this and how to solve this problem?

Because the Judiciary giving primary importance to the mother after twenty weeks of pregnancy it is very risk for an abortion. Solution for this problem is whenever a medical examinator handle a POCSO case had to immediately report it to the Police officials. If not, it would further delay and have more consequence to it. Also, if the case reported is to the end of twentieth week then the proceeding has to move fast.

After the birth of the child does the minor mother will get same opportunity and development as the other minors? If Yes then How?

The shelter home for children is providing all the necessary support for the POCSO victims. Their education and their expenses are done by the State Government. Still, they need to know more about the value of education and importance of it.


[1] https://www.unicef.org/crc/files/Rights_overview.pdf

[2] Constitution of India

[3] The Medical Termination of Pregnancy Act, 1971 (Act No. 34 of 1971)

[4] Ministry of Health and Family Welfare. Guidelines & protocols: Medico-legal care for survivors/ victims of sexual violence. (India: 2014).

[5] DEALING WITH CHILD VICTIMS OF TRAFFICKING AND COMMERCIAL SEXUAL EXPLOITATION, Department of women and child development, UNICEF

[6] Marimuthu vs The Inspector Of Police on 19 September, 2016

[7] Denial of Safe Abortion to Survivors of Rape in India, PADMA BHATE-DEOSTHALI and SANGEETA REGE, Health and Human Rights , Vol. 21, No. 2 (DECEMBER 2019), pp. 189-198

Author: Aswathi Radhakrishan

Editor: Kanishka VaishSenior Editor, LexLife India.

Abortion Law Reform in India – An Analysis of the Medical Termination of Pregnancy (Amendment) Bill, 2020

Reading time: 2-3 minutes.

On March 17, 2020, the Lok Sabha passed The Medical Termination of Pregnancy (Amendment) Bill, 2020. The Statements of Objects and Reasons of the Bill state that several cases were filed in the Supreme Court and various High Courts, regarding abortion of pregnancies beyond the 20-week permissible limit.

This article analyses abortion law in India as it stands today and the changes which will be introduced by the passing of the Amendment Bill. It also delves into some challenges that the Bill has been unable to address.

Also read: Explained: Surrogacy (Regulation) Bill, 2019

Abortion Law In India

The Medical Termination of Pregnancy Act, 1971 allows for abortion on four occasions. Firstly, where the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health. 

Secondly, where there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Thirdly, when a pregnancy is alleged to have been caused by rape then, it is presumed to have caused a great mental injury. 

Lastly, where the pregnancy is caused by the failure of any contraceptive devices used by a married woman or her husband. The Act imposes an additional requirement of consultation with one doctor for abortion within 12 weeks and consultation with two doctors for abortion within 12-20 weeks. Beyond 20 weeks, termination of pregnancy is only allowed if in the doctor’s opinion, it is necessary to save the life of the woman.

Also read: Law Regarding Consensual Intercourse with Minors in India

This Act has been criticised on several grounds. One major concern was regarding the unfairness of an upper limit of 20 weeks, as most foetal abnormalities are detected after the expiration of this period.

The Act also did not give due consideration to the fact that in most cases of sex trafficking or rape, unwanted pregnancies are discovered at a later stage. Another concern was regarding the logistical issues faced by women living in rural areas.

There is a dearth of qualified medical practitioners and hence, consultation with more than one doctor becomes a challenge. Furthermore, the Act discriminates on the basis of the marital status of the women.

Under the Act, only married women could make the choice to abort due to failure of contraceptive devices. In light of all of these issues, the legislature introduced The Medical Termination of Pregnancy (Amendment) Bill, 2020.

Changes Introduced By The Bill

In a significant move, the Bill allows for termination of pregnancy up to 20 weeks with advice of only one doctor. Moreover, abortion up to 24 weeks has been legalised for vulnerable categories of women with the additional requirement of consultation with two doctors.

Under the 1971 Act, termination of pregnancy beyond 24 weeks was not allowed. However, the 2020 Amendment Bill sets up State level medical boards to examine cases where termination beyond 24 weeks is necessary due to substantial foetal abnormality.

Also read: Marital Rape: An unheeded issue

A remarkable step towards equality can be witnessed as the Bill replaces the phrase ‘married woman and her husband’ with ‘woman and her partner’, thereby easing the life of unmarried women.

The Bill also gives due regard to privacy and allows a registered medical practitioner to reveal the details of the woman to only people authorised by the law. Violation of this law has been made punishable with imprisonment up to a year, fine, or both.

Key Concerns Raised And Criticisms Of The Bill

Although the Bill has received positive recognition worldwide and is deemed as a progressive step towards empowering women, it is far from ideal. Termination of pregnancy in India is still based on a doctor-centric approach.

Most significantly, the 2020 Bill makes a distinction between the effect on mental health caused by pregnancy due to rape and pregnancy due to failure of contraceptives. The Bill provides that in cases of rape, the doctor ‘shall presume’ detriment to mental health and in cases of failure of contraceptives, the doctor ‘may presume’.

Even though the psychological harm caused to victims of rape cannot be overemphasised, this difference in standard of presumption provides a window to doctors to refuse women who end up with unwanted pregnancies due to failure of contraceptives.

The legislature still seems unable to reconcile with the fact that a woman’s right to reproductive autonomy is covered under Article 21, and this right must be the sole basis to proceed with the choice to terminate a pregnancy.

Also read: Explained: Community resources and Right to Life

The Bill also does not take into account the time sensitive nature of a pregnancy and provides no time frame within which the State Medical Board has to make a decision. Any delay may cause more complications for the woman.

Abortion law in India does not specify whether the Act is applicable to transgender women and the 2020 Bill provides no clarity on this matter. Furthermore, the Bill, by virtue of Section 5A seeks to protect the identity of the woman and penalises disclosure of identity to unauthorized persons with one-year imprisonment.

In this regard it may be argued that the provision overstates the repercussions of revealing the identity and gives in to the social abhorrence towards abortion.

Conclusion

The Medical Termination of Pregnancy (Amendment) Bill, 2020 is a step in the right direction. However, it leaves a lot to be desired. The Bill introduces an unreasonable classification between women even though medical research points towards the conclusion that there is no difference whether a pregnancy is terminated at 20 weeks or 28 weeks.

A woman’s right to make reproductive choices falls within personal liberty under Article 21 as held in the case of Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1. This position was reiterated in the case of K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.

Also read: Data Protection Bill and Right to Privacy- An Analysis

Abortion laws in any country rely on one fundamental question – when does life begin? The answer to this question depends on a variety of factors which differ from culture to culture.

India is a secular country and our Supreme Court has time and again divorced itself from religious or moral beliefs. There has arisen a need for legislators to keep in mind that laws must be framed on the basis of constitutional morality rather than social morality.


Author: Aditi Soni from Chanakya National Law University (CNLU), Patna, India.

Editor: Astha Garg, Junior Editor, LexLife India.


Analysis: Delhi HC Judgement on Termination of Pregnancy

Reading time: 2-3 minutes.

The High Court of Delhi established precedence by permitting termination of 25-week foetus diagnosed with congenital anomaly. The Hon’ble court enunciated that “rigours of section 3(2) can be relaxed where the conditions of foetus is incompatible with life”.

MTP (Medical Termination of Pregnancy) Act, 1971 is the statutory law that governs the termination of pregnancy. With another court granting permission to terminate post 20-week foetus, the long-drawn debate over the much-needed amendment in the MTP Act has once again become the bone of contention.

In the light of the precedence established by Delhi Court, this post will attempt to briefly explain the MTP act and enunciate the loopholes of this 48 old law on termination of pregnancy.

What exactly does the MTP Act say?

Medical Termination of Pregnancy Act was passed in the year 1971 in the light of rising frequency and maternal deaths due to lack of proper amenities. MTP regulates the abortion provisions. Some of the hallmarks of MTP act are:

  • A doctor can perform abortion if the pregnancy is harmful to pregnant woman’s life or mental health. Or if there is good chance that delivery of the child would seriously affect her mental and physical being.
  • Pregnancy can be terminated by medical practitioner: (a) where the length of the pregnancy does not exceed 12-weeks (b) where the length of the pregnancy exceeds 12-weeks but does not exceed 20-weeks, only in special circumstances.
  • Pregnancy may be terminated in a hospital established or maintained by government, or a place approved by the government.

What are the problems with this law?

To begin with, this Act puts a bar on termination of pregnancy transcending 20 weeks. The reason behind this was that it was medically dangerous at that time (in 1971) to terminate pregnancy beyond that maturity period. However, medical facilities have advanced significantly since then and now it is possible to have safe termination of pregnancy beyond 20 weeks.

Also, this act offends the feminist perspective by allowing healthcare providers to have the final say on abortion instead of the concerned woman herself. It creates an environment where women feel like being at the mercy of their healthcare providers.

What is the current status of this law?

In 2014, the Ministry of Health and Family Welfare released a draft of the MTP (Amendment) Bill, 2014. It proposes changes that could initiate a shift in the focus of the Indian abortion discourse from healthcare providers to women. The Bill also expands the base of healthcare providers by including mid-level and non-allopathic healthcare providers.

Additionally, the clause extending the gestational limit could trigger ethical debates on eugenic abortions and sex-selective abortions. Stated simply, it means that this bill seeks to address the shortcomings of the previous law by empowering women to take decision about the termination of her pregnancy even beyond 20 weeks. This bill must be enacted soon.

In conclusion…

The High Court of Delhi has given a progressive judgement and reiterated the need for amendment in the MTP Act. The said law is outdated as explained above. The government has taken a positive step by proposing an amendment in the law. We hope to see the realization of this amendment soon.