INDIA – Need an abortion: join the long march to the Supreme Court in Delhi

The Supreme Court on Friday said that a minor rape victim should not be forced to knock the doors of the court for getting permission to terminate her pregnancy arising out of any sexual offence.

On 25 August, the Supreme Court ruled that a rape victim who is a minor should not be forced to knock on the doors of the Court for permission to terminate her pregnancy arising out of any sexual offence. This was in response to an appeal for compensation for the 10-year-old girl who recently underwent a caesarean section after being denied an abortion by two courts. The Supreme Court judges also favoured the setting up of a trust for the girl’s benefit. The Justices said that crucial time had been wasted in court proceedings, so that it was thought to be too late and risky to allow an abortion in her case. The court also said that in such cases, medical practitioners should take pro-active steps to come to the rescue of the victim.

However, the Court also agreed with senior advocate Indira Jaising, who contended that continuing the pregnancy was also life threatening in a minor girl and it was the duty of the doctors to allow her to undergo abortion. “The provisions of the Medical Termination of Pregnancy (MTP) Act are not properly understood by doctors and they are afraid to help the victims with abortion, fearing criminal prosecution under Section 312 of Indian Penal code,” she said.

But if you thought that this was the end of having to go to the courts for permission for an abortion for a child whose pregnancy is beyond 20 weeks, think again.

After a brief hearing, the bench said that it would examine the larger issue pertaining to minor rape victims and asked Jaising to submit a scheme for creating a trust or foundation to take care of the 10-year old child. The court said that money would be deposited in the trust which would meet medical and day-to-day requirement of the victim, her child and family members.

The bench also directed that identity of the victim, her child and her family members would not be made public and ordered that her medical report be kept in a sealed cover. It also directed Chandigarh’s legal service authority to immediately disburse amount of Rs one lakh to her.

The girl had been raped several times, allegedly by her maternal uncle. She and her family members came to know about her pregnancy when she went to see the doctors for stomach pain and by that time the foetus was about 26-week old.

On 10 August, the Supreme Court set up a medical board to examine the condition of a 20-year-old Pune-based woman who was seeking permission to abort a 24-26-week pregnancy where the fetus was anencephalic. The medical board said “there was no medical treatment for the anomaly” and “the survival rate was minimal”. So the court allowed the abortion.

On 28 August, Sneha Mukherjee, a lawyer with the Human Rights Law Network, petitioned the Supreme Court on behalf of the parents of a pregnant 13-year-old rape victim from Mumbai for permission for an abortion for her. At that point, the girl was 30 weeks pregnant. The pregnancy had been discovered when her parents took her to a doctor on 9 August, for treatment for obesity. The Court called for an immediate medical panel to examine the girl and give their opinion. The decision was scheduled for 31 August, but at this writing, no decision had been announced.

Most recently, on 30 August, Dr Rishma D Pai, President of the Federation of Obstetric & Gynaecological Societies of India (FOGSI), went public on the issue (though only with her personal opinion) and said access to safe abortion should be made every woman’s right. She wrote: “Last month, the Supreme Court ruled in favour of a woman seeking to abort her 26-week fetus with a congenital defect. The bench stated that a woman has the “sacrosanct right to her bodily integrity”. The judge leading the bench also stated that “the right of a woman to have a reproductive choice is the right of personal liberty”. After explaining how the 1971 abortion law restricts abortions after 20 weeks and forces so many girls and women to seek court permission, which seems to be denied almost as often as it is provided, she concludes:

It saddens me to know that a woman dies every two hours due to unsafe abortions in our country. This is despite abortion being legal in India for several decades. In fact, according to the Ministry of Health and Family Welfare, unsafe abortions are the third-leading cause of maternal deaths in India.”

One aspect of the problem, which is not getting a proper airing, is that the medical panels set up to advise the courts may put forward views on abortion that reveal a lack of knowledge and experience of post-20 week abortions and even anti-abortion sentiments. This may be one reason why some girls and women beyond 20 weeks are permitted an abortion and others are not.

For example, in a judgment of 9 May 2017, the Supreme Court refused an abortion to a woman who had become pregnant as a result of rape. She had initially requested an abortion when she was 17 weeks pregnant. After significant delays at the government hospital, she eventually went to the High Court, which rejected her plea. When her case reached the Supreme Court, she was 26 weeks pregnant. The barriers she encountered throughout illustrate the need for supporting guidelines for medical providers and courts, to clarify the legal entitlements of survivors of rape and sexual abuse, Hanna Kofman, JD, says. The Supreme Court based its decision on the opinion of the medical panel that at 26 weeks the abortion procedure posed a risk to the life of the woman and the fetus. This is hard to fathom. A 26-week abortion is not unsafe as such and it is almost always safer than continuing the pregnancy. To introduce protecting the fetus denies the possibility of abortion completely. The Court held that the woman was entitled to 300,000 rupees compensation from the State of Bihar for the delays she encountered. But nothing was said about their own and the medical panel’s failed responsibility in denying her an abortion.

The Solicitor General of India, Ranjit Kumar, appearing for the Centre, told the judges that the Government had, in accordance with the apex court’s earlier direction, communicated to all states and union territories to constitute medical boards and have them in place to deal with such abortion matters. But the need for appropriate qualifications for those on such panels was not mentioned in the news report. Nor was the policy questioned in spite of the delay that the Supreme Court clearly identified as being the result of medical panels and court cases.

SOURCES: Times of India, by Amit Anand Chaudhary, 25 August 2017 ; BBC, 28 August 2017 ; The Hindu, 29 August 2017 ; DNA India, by Dr Rishma D Pai, 30 August 2017 ; Hanna Kofman, ReproHealthLaw Blog, 31 August 2017 ; PHOTO