By Radhika Saxena
The Supreme Court of India recently rejected an appeal for medical termination of pregnancy (MTP) by a 10-year-old survivor of rape. In an order passed on 28th July 2017, the Court held that,
“In view of the recommendation made by the Medical Board, we are satisfied, that it would neither be in the interest of the girl child, nor of the life of the fetus, which is approximately 32 weeks old, to order medical termination of pregnancy. We, therefore, hereby decline the instant prayer made in the petition.”
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The matter first came up before the Court on 21st July 2017. On the 24th of July 2017, the Court directed the Member Secretary of the U.T. Chandigarh Legal Services Authority to assist the Court as an amicus curiae for the survivor to be examined by a Board of Doctors to determine whether the health of the 10-year-old girl child concerned, and also that of the fetus, would be adversely affected, if the pregnancy is continued for the full term. The medical opinion, which came to be the basis for rejecting medical termination of pregnancy, was as follows:
“The girl child is in a good state of health at present except mild pallor (anemia). The girl child is a known case of congenital heart defect (Ventricular Septal Defect) which was corrected in 2013 at PGI Chandigarh. At present she is asymptomatic and the corrected Ventricular Septal Defect is unlikely to interfere with the progress of pregnancy. On clinical and ultrasound examination the fetus is approximately 32 weeks old, alive and doing well (Biophysical profile, Non Stress Test and umbilical artery Doppler study – normal).
Estimated weight of the fetus is approximately 1.6 kg and there is no apparent fetal congenital malformation.
In view of the above, continuation of pregnancy may not pose any additional risk to the girl child and the fetus, other than the age related risk which is higher than adult pregnant woman.
Continuation of pregnancy is less hazardous for the girl child and fetus than termination of pregnancy at this stage.”
This case received wide media attention both national and international. There was a sharp cleavage of opinion regarding the decision of the Supreme Court to decline termination of pregnancy - various medical professionals were of the opinion that the pelvic bones of the child are not fully developed and thus ill-equipped to carry a pregnancy to term apart from mental and physical trauma, warranting termination.
The 10-year-old survivor was first taken to the hospital for examination when she complained of pain in her abdomen. It was then discovered that she was pregnant owing to rape by her maternal uncle and an FIR was lodged in this regard.
In India, the law governing termination of pregnancy is the Medical Termination of Pregnancy Act (MTPA), 1971. The Act mandates that ordinarily, a pregnancy may be terminated up to 12 weeks or between 12 to 20 weeks where in the opinion of registered medical practitioner(s) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to physical or mental health or that if the child were born, it would suffer from physical or mental abnormalities as to be seriously handicapped. Section 3 of the MTPA states as follows:
“3. When Pregnancies may be terminated by registered medical practitioners. -
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are.
Of opinion, formed in good faith, that,-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or
(ii) 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.
Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1. (a), no pregnancy shall be terminated except with the consent of the pregnant woman.”
Upon discovery of the pregnancy, the survivor approached the Sessions Court for termination of pregnancy, the gestation period being 26 weeks, way beyond the statutorily mandated period. The Sessions Court directed examination of the survivor for determining the gestation age and on 16th July 2017, the gestation period was established to be 30 weeks (give or take 2 weeks). The survivor was admitted to the hospital on 8th August, but termination was not carried out and a petition for termination thus came to be filed before the Supreme Court, which was declined by the order quoted above.
Suchitra Dalvie from the Asia Safe Abortion Partnership in a piece for Economics and Political Weekly states that at 26 weeks,
“…the foetus would have weighed around 760 gm and the termination could have taken place vaginally, using medical abortion pills as per the regimen recommended by the World Health Organisation (WHO 2012) and the Royal College of Obstetricians and Gynaecologists (RCOG 2011) and as analysed in the Cochrane Database (2011).”
It is to be remembered that we are dealing with a 10-year-old child here, who was not (and is still not) aware that she was pregnant. Pregnancy due to rape has been acknowledged as causing grave anguish to the mental health of a pregnant woman by the very statute itself, yet the Court declined termination of pregnancy. Moreover, pregnancy is often not discovered till it’s too late as children this age aren’t aware that they were sexually abused, that a pregnancy may result from it, what a pregnancy entails, or are too scared to confide even to their near and dear ones. Ideally, in a case like this, one should not have to go to Court seeking termination; doctors in their discretion should terminate the pregnancy, especially when the pregnant woman is a girl child between the ages of 10-14 years.
Section 5(1) of the Act states that the length of the pregnancy and the opinion of not less than two registered medical practitioners shall not apply to a case of termination of pregnancy by a registered medical practitioner where the practitioner is of the opinion formed in good faith that termination of the pregnancy is necessary to save the life of the pregnant woman.
"5. Sections 3 and 4 when not to apply.-
(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
Nowhere does the Act mandate the Court’s intervention in the process of decision making under Section 5 of the Act.
In an interview to The Hindu, Senior Advocate Ms. Indira Jaising highlighted the failure of the medical professionals in this regard,
“The medical fraternity is not providing timely intervention for child rape victims who become pregnant. Section 5 of the Medical Termination of Pregnancy Act provides for medical termination of pregnancy as a life-saving measure...Section 5 allows medical intervention without a court order as a life-saving measure. But doctors are not doing it despite knowing all this. They just wash their hands off the case. That's why victims of rape – children – come to court. This tragic situation boils down to the failure of the medical profession.”
Thus it follows, doctors may still terminate a pregnancy beyond 20 weeks, to save the life of the pregnant woman. Doctors however seldom invoke this section, and the general trend in cases where the gestation period is beyond 20 weeks, has been to approach a court of law praying for termination of pregnancy. The Act in Section 3 clearly stipulates that where a pregnancy is terminated in accordance with the provisions therein, a registered medical practitioner/doctor will not be prosecuted against under the Indian Penal Code for causing miscarriage. This then begs an important question as to whether doctors are aware of this provision of the law and if so, then why don’t they invoke it.
Suchitra Dalvie states,
“In India, the training does not currently include either this [a foetus beyond 20 weeks must not be born live] or a surgical procedure known as dilatation and evacuation (D&E) which is also used for later gestation terminations.”
Drawing attention to the inadequacy of medical education in India in this regard, Ms Dalvie further states that,
“Medical education in India is based on a biomedical curative model that does not include sensitization or orientation on issues and rights based on gender. A cross sectional survey conducted among medical students in Maharashtra showed that almost a quarter of the respondents considered abortion to be morally wrong, one fifth did not find abortions for unmarried women acceptable and one quarter (incorrectly) believed that a woman needs her partner or spouse’s approval to have an abortion.”
The 10-year-old survivor was told that she was gaining weight owing to a big stone in her stomach and was being operated upon for it, but she actually gave birth to a baby through a Caesarean procedure on 17th August 2017. The doctors performed the delivery through Caesarean section presumably to save the life of the girl. The question however is, that if they can carry out the procedure at this stage, they could have done the same earlier as well without court intervention in view of Section 5 of the MTP Act.
More cases of this kind are coming to the fore such as that of the 12-year-old rape survivor from Mumbai who was found to be 27 weeks pregnant and whose plea for termination the Supreme Court allowed on 6th September 2017, a 13-year-old rape survivor from Kerala who became pregnant and delivered a baby, and a 10-year-old rape survivor from Haryana whose pregnancy of 21 weeks was terminated by doctors pursuant to a court order. The scenario seems ripe for judicial intervention.
In the case of the 10-year-old survivor, the Supreme Court through a Bench headed by the ex-Chief Justice of India Justice J.S. Khehar orally suggested to the Solicitor General of India to consider setting up permanent boards in hospitals across the country to deal with cases of medical termination of pregnancy. A month later, in a case pertaining to an adult woman from Pune, who was 24 weeks pregnant when she approached the Supreme Court for termination of pregnancy, the Solicitor General informed the Court that the Centre had written to all the states asking them to consider setting up permanent medical boards to consider pleas of termination of pregnancies. There is however no update on the progress in this sphere yet.
It is now time for the Court to issue guidelines for such cases so that young rape survivors are not forced to come to court each time pregnancy is discovered beyond 20 weeks, especially when an enabling law exists to their advantage.
Radhika Saxena is a Delhi Based lawyer at the Chambers of Senior Advocate Indira Jaising.