DOU­BLE JEOP­ARDY

India Today - - UPFRONT - FLAVIA AGNES Flavia Agnes is a women’s rights lawyer and di­rec­tor of NGO Ma­jlis in Mumbai, which pro­vides so­cio-le­gal sup­port to victims of sex­ual vi­o­lence

Through its rul­ing de­liv­ered on July 28, 2017, re­fus­ing per­mis­sion to a 10-year-old to abort her nearly 30-week-old foetus, the Supreme Court, the last por­tal of hope for the com­mon man, has grossly let down the child, a vic­tim of pro­longed sex­ual abuse by her own un­cle. In­deed, it was a Hob­son’s choice for the court, but it had to weigh the lesser of the two evils while pro­nounc­ing its ver­dict. Abort­ing a 30-week foetus, al­most a fully formed baby, is not the best op­tion for any preg­nant woman, let alone a 10-year-old. There is a risk to life in­volved. How­ever, car­ry­ing the preg­nancy to term is even more haz­ardous con­sid­er­ing the dam­age it would cause to the ten­der and as yet not fully formed uterus and pelvic re­gion of the child. And, even more, the psy­cho­log­i­cal dam­age to the child, who has al­ready gone through the trauma of rape and suf­fered in si­lence, as she lacked the lan­guage to voice her an­guish about the abuse and its con­se­quences upon her ten­der body.

While the courts and spe­cially con­sti­tuted med­i­cal boards are weighed down by re­stric­tions pre­scribed un­der the Med­i­cal Ter­mi­na­tion of Preg­nancy Act, 1971, or

MTP Act, which pro­vides a very nar­row le­gal win­dow for abor­tions up to 20 weeks of preg­nancy—only if there is dan­ger to the life of the preg­nant mother or se­vere and ir­re­versible ab­nor­mal­i­ties of the foetus—they failed to take into ac­count cir­cum­stances such as these, which were not an­tic­i­pated at the time the MTP Act was passed. The judges al­lowed no lee­way to dwell on the pe­cu­liar sit­u­a­tion at hand—the pro­longed sex­ual abuse by a rel­a­tive and the fact that the preg­nancy had gone un­no­ticed by all those who are duty-bound to care for this child: her par­ents, care­tak­ers, teach­ers, health­care providers and even the courts, the ul­ti­mate guardians of mi­nors un­der the le­gal no­tion parens pa­triae (lit­er­ally, par­ent of the coun­try). The de­ci­sion of the court has only served to re-vic­timise and cause fur­ther vi­o­lence to the al­ready trau­ma­tised child.

For child sur­vivors of sex­ual abuse, it is al­most im­pos­si­ble to de­tect a preg­nancy un­til it is too late. Dur­ing the course of its work of pro­vid­ing so­cio-le­gal sup­port to rape sur­vivors, Ma­jlis (an NGO based in Mumbai), had flagged this issue in a re­search study brought out in 2015 af­ter fol­low­ing up 640 rape cases. In most cases, the in­ci­dent of rape comes to light only when the preg­nancy is de­tected at the pub­lic hos­pi­tal the child is taken to when she com­plains of some phys­i­cal ail­ment. By then, the child would have crossed the per­mis­si­ble pe­riod of 20 weeks. So these young ado­les­cent girls barely in their teens are left with no choice but to go through with the preg­nancy and de­liver a full-term baby and then again go through the trauma of giv­ing up the child to adop­tion.

The Union min­istry for health and fam­ily wel­fare pro­posed amend­ments to the MTP Act in Oc­to­ber 2014. Ad­dress­ing some of these con­cerns, one sug­ges­tion was to ex­tend the time within which abor­tion may be car­ried out from the cur­rent 20 weeks to 24 weeks. Recog­nis­ing a woman’s agency over her body, it was pro­posed that within the first 12 weeks, an abor­tion may be car­ried out by a reg­is­tered doc­tor at the re­quest of a preg­nant woman, with­out the opin­ion of a reg­is­tered doc­tor. It was also pro­posed that abor­tion be per­mit­ted be­tween 12 and 24 weeks if a med­i­cal prac­ti­tioner deems it nec­es­sary. Even be­yond this pe­riod, it pro­vides for abor­tion in case of sub­stan­tial foetal ab­nor­mal­i­ties. This im­plies that such ter­mi­na­tions should be per­mit­ted any­time dur­ing the preg­nancy.

How­ever, there is an ur­gent need to add a special pro­vi­sion on abor­tions for victims of sex­ual abuse and women suf­fer­ing from mul­ti­ple vul­ner­a­bil­i­ties, in­clud­ing dis­abil­i­ties, if we are to pro­vide much-needed respite to women and chil­dren.

Most of­ten, the in­ci­dent of rape comes to light when a child comes to a hos­pi­tal com­plain­ing of some ail­ment

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