DOUBLE JEOPARDY
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