10-year-old rape survivor's pregnancy: Abortion cannot hinge on archaic law that is incapable of dealing with issue
It's not just a question of following legal procedure about pregnancy and abortion. In this case, the petitioner is a child herself, and with every procedural stage, continues to endure grave mental and physical torture
Contemporary Indian jurispudence has often witnessed questions over rights of the unborn foetus versus rights of the pregnant woman. Time and again, concerns regarding the Medical Termination of Pregnancy Act (MTPA), 1971, have been brought to the fore — the fact that an archaic law that strikes at the roots of the sexual and reproductive rights of women. The law came into effect after recommendations from the Shantilal Shah Committee Report in 1966, which said that reproductive rights, especially the right and procedure to abortion, should be regulated by law.
The law went through amendments in 2002, which decentralised it by allowing penal sanctions for unapproved and illegal forms of abortion. Medical termination of pregnancy rules were formulated in 2003.
Under the MTPA, 1971, the permissible and legal limit for terminating a pregnancy is 20 weeks. In exceptional cases, where it can be proved that the life of the mother or child is in grave danger, the limit can be extended to 24 weeks, but after the consideration and report from a specialised medical board. The legally-mandated exception to the permissible limit is contained in Section 5 of the MTPA, wherein medical termination of pregnancy is allowed when it is "immediately necessary to save the life of the pregnant woman". A number of recent judgments have discussed how there is a need to review present circumstances and amend the law in a way that an unambiguous rights-based approach is adopted.
This controversial legislation was in the news again when a lower court denied permission to a 10-year-old rape survivor to medically terminate her 26-week foetus. The Supreme Court stepped in and ordered a full examination of the girl by the Post-Graduate Institute of Medical Education and Research (PGIMER) in Chandigarh to comprehend the implications of carrying the pregnancy to term on the girl's and the unborn child's health. The report of the medical board would then be submitted to a special bench of the Supreme Court on 28 July, after which it would decide whether or not the law can mandate an exception in this case. The fact that a 10-year-old girl has to wait for the apex court to debate on questions of law and legal procedure, at a point when she is carrying an unwanted foetus — the product of heinous sexual abuse — seems like a travesty of justice.
And this is not the first time the courts are discussing the issue of a rape survivor with regard to the MTPA. In R versus Haryana, the Punjab and Haryana High Court denied permission to the petitioner, a rape survivor, to terminate her pregnancy because the medical board's recommendations did not give a go-ahead to the abortion. The court asked doctors from AIIMS to reassess the possibility of medical termination, but the petitioner gave birth to the baby while proceedings were still on.
In a landmark judgment in July 2016, the Supreme Court, while deciding a case where a rape survivor wanted to legally terminate her pregnancy beyond 20 weeks, stated that it was a question of "life versus life".
But in the present case, it is more than a just a question of following legal procedure and treading on questions of life of the unborn child versus life of the pregnant mother. In this case, the petitioner is a child herself, and with every procedural stage, continues to endure grave mental and physical torture.
Moreover, it has been noted by the lower courts that a medical termination beyond the legally-mandated limit can be dangerous for the 10-year-old, but the burden of giving birth to a baby spawned by rape and sexual abuse is also a disturbing fact. The fact that the girl was raped by her uncle makes it even more unacceptable for us, the audience, to sit back while the judiciary debates procedure and morality.
What is needed at this stage is an urgent hearing of the case, instead of this procedural back and forth. The court's arbitrariness and strict, pedantic reading of a 45-year-old legislation seems to be normalising child sexual abuse, and the violation of the right to life under Article 21 of the Constitution. The present case is not only about the medical termination of pregnancy and legally mandated limits on abortion, but about how the health of a young girl has been jeopardised by sexual abuse.
Moreover, the court's refusal to delve on questions of child sexual abuse is a dangerous precedent, and in the absence of a yardstick provided by the MTPA on pregnancy in cases of children, disabled, or mentally-challenged, where concepts of free will and consent are debatable, the fact that the legislation is problematic has only been reinforced.
The legislation and procedure under the legislation is moot at this juncture. A special hearing by the Supreme Court bench is necessary, where it assumes parens patriae jurisdiction, and any judgment must keep the health of the child at the centre of it.
Debate between law and morality, rights of unborn child versus rights of the pregnant mother are unnecessary. It would be a travesty of justice if this child is forced to go through this pregnancy and carry the foetus to its full term. In addition to the protecting the health of the child, the Supreme Court should consider that the child sexual abuse and rape of children is not covered under MTPA regulations and guidelines around these issues would save the lives of many.
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