The cases of two child rape victims show why India needs guidelines for late-term abortions

In July, the Supreme Court denied an abortion to a 10-year old girl from Chandigarh who was raped allegedly by her uncle. The girl was 32 weeks pregnant at the time and went on to deliver the baby. In September, the same court allowed a 13-year old rape victim from Mumbai, whose pregnancy had also advanced to 32 weeks, to abort her foetus. These conflicting verdicts highlight the lack of clarity in deciding cases of late-term abortion, even those in which the lives of minor rape victims are at stake.

In the case of the 10-year-old from Chandigarh, the court on the advice of a medical panel considered the lives of the girl and the foetus. In the second case, the court’s verdict was based on trying to save the life of the girl and protecting her from trauma.

These are not the only two cases in which the courts have reached different conclusions in similar cases. In July, the Supreme Court denied an abortion to a Mumbai woman whose foetus had developmental abnormalities. But the Supreme Court had previously passed several orders allowing abortions in cases of foetal abnormalities.

The challenge, experts say, is that there are no legal guidelines under the Medical Termination of Pregnancy Act for doctors or courts to follow when deciding on abortion after 20 weeks.

The Act lays down conditions under which a woman can get an abortion. A woman can have an abortion up to 20 weeks of her pregnancy only if doctors are of the opinion, taken in “good faith”, that continuing the pregnancy involves substantial risks for the physical and mental health of the mother or of foetal abnormalities developing. As per the Act, an abortion is allowed only up to 20 weeks of pregnancy.

Since the Act allows abortions only up to 20 weeks, if a woman wants to terminate her pregnancy after 20 weeks, she has to get permission from the courts to do so.

In such abortion cases, the courts rely on the advice of medical boards appointed to examine the woman or girl petitioning for an abortion. For instance, in the Chandigarh case, the Supreme Court asked the medical board to check if the health of the 10-year old and her foetus would be adversely affected if an abortion was not feasible and the pregnancy had to continue to full term.

The medical boards appointed in the two cases also gave different advice although the petitioners’ situation were similar.

Doctors’ discretion

In the verdict denying and abortion to the 10-year-old rape victim, the Supreme Court relied on the medical board’s opinion that the life of the foetus must be considered. Dr Vanita Suri, the head of obstetrics and gynaecology at the Post Graduate Institute of Medical Education and Research at Chandigarh and who was on the medical board, told the New York Times, “At some stage of pregnancy, baby has earned the right to live.”

In an earlier article for Scroll.in, Dr Subha Sri B, chairperson of CommonHealth, a national level coalition for maternal and neonatal health and safe abortion, argued that the premise of the medical report was wrong. She pointed out that:

“The fact that the doctors said that they were considering two lives – that of the pregnant girl and that of the foetus – is unacceptable. This articulation of “the health of the foetus” in this scenario is worrying, since it is juxtaposed against the health of the girl who is carrying the pregnancy, herself a young child in this case. It is indeed cruel to force the girl to bring the foetus to maturity as she alone will bear the physical and mental trauma of pregnancy and childbirth.”

As stated in the Supreme Court order, the medical board also said, “In view of the above, continuation of pregnancy may not pose any additional risk to the girl child and the foetus, other than the age-related risk which is higher than adult pregnant woman. Continuation of pregnancy is less hazardous for the girl child and foetus than termination of pregnancy at this stage.”

This girl had congenital heart disease which the medical board said has been corrected through surgery and was “unlikely to interfere with the progress of the pregnancy.”

Subha Sri said that there was no basis to say that this child’s pregnancy would get safer as it progresses. She argued that there was still considerable risk to the girl as a 10-year-old’s pelvic bones are not fully developed to carry a pregnancy. The girl later delivered a child via C-section and is reportedly stable.

In the Mumbai girl’s case, the medical board’s opinion was that the pregnancy should be terminated because the girl would otherwise undergo trauma and agony. In the order granting abortion, the court noted that, “It has also been opined that termination of pregnancy at this stage or delivery at term will have equal risks to the mother. The Board has also expressed the view that the baby born will be preterm and will have its own complications and would require Neonatal Intensive Care Unit (NICU) admission.”

Sneha Mukherjee, from Human Rights Law Network who appeared for the Mumbai girl, said that the medical opinions reflect the biases of the doctors. “Some doctors are pro-life,” she pointed out. Doctors in Maharashtra have also refused abortions of foetuses within 20 weeks for a variety of reasons ranging from religious beliefs to avoiding any brush with authorities.

The Medical Termination of Pregnancy Act has actually given powers to the doctors to allow and carry out abortions if they think that a pregnant woman’s life is in danger. But many doctors do not use these powers.

Section 5 of the Act states that the restrictions in the Act shall not apply in a case where the doctors forms an opinion in good faith that the termination of pregnancy is immediately necessary to save the life of the pregnant woman.This power, if exercised, will not drive women to court to get permissions for abortions. In an interview to The Hindu, senior advocate Indira Jaising said that doctors are not providing timely interventions for child rape victims despite being armed with the powers under Section 5.

The doctors “just wash their hands off the case”, she said. “That’s why victims of rape – children – come to court. This tragic situation boils down to the failure of the medical profession.”

No guidelines

In the United Kingdom, where abortions are allowed up to 24 weeks, the Royal College of Obstetricians and Gynaecologists has formulated detailed guidelines for abortion. It also covers procedures for pregnancy over 20 weeks. Like in India, there is no time limit for an abortion in cases where the mother’s life is in danger. The guidelines take into consideration doctors who have a conscientious objection to abortion based on their religious or moral beliefs. While a doctor can refuse to perform an abortion, he is required to tell the woman of her right to see another doctor.

India has no such guidelines holding doctors responsible for directing women to other medical care in case they do not want to perform abortions. In 2016, the Ministry of Health and Family Welfare released guidelines on abortion, mainly related to procedures to be followed while conducting abortions up to 20 weeks but with no direction to doctors on what to do for abortions of foetuses older than 20 weeks.

In case of the Mumbai rape victim, the doctors at the city’s JJ Hospital performed a C-section delivering a baby boy, despite the Supreme Court allowing termination of pregnancy – possibly due to the lack of guidelines on how to perform abortions beyond 20 weeks. As the board had predicted in its advice to the court, the premature baby needed care in the neonatal intensive care unit. However, the baby died of medical complications two days later.

The UK guidelines state that, in case of any pregnancy beyond 21 weeks and six days, the doctor can give an injection to cause foetal death before the foetus is evacuated.This procedure is commonly followed for late-term abortions in many other countries.

After the Chandigarh case, CommonHealth had urged the government to provide guidelines for safe and legal abortions to rape and sexual abuse survivors, especially for children. They had also said that there should be no time limit on abortion in such cases since they are often detected late and only reported in the late second or third trimester of pregnancy.

The International Campaign for Women’s Right to Safe Abortion, a network of more than 1,200 bodies worldwide working on safe abortion, also released a statement saying that third trimester abortions in experienced hands “is at least as safe as delivery at term, and may be safer.” They pointed to a body of literature and growing clinical experience of third trimester abortions in the United States, suggesting that the procedures can be safely performed, even for young girls. Though the medical community is still debating the ethics of late-term abortions, it is important for India to have the discussion and for the government to draw up clear guidelines for all unwanted pregnancies beyond 20 weeks. Cases cannot be left entirely up to the discretion of doctors whose opinions may not be based on medicine alone.