How a 13-year-old can be a mother, asked Chief Justice Dipak Misra on Wednesday while deciding the abortion plea of a minor girl in an advanced stage of pregnancy—31 weeks. The Mumbai-based girl was allowed to abort the foetus, the result of rape, by a bench of the apex court comprising Justice Misra and judges Amitava Roy and A.M. Khanvilkar.
Considering the age of the petitioner, the trauma she has suffered because of sexual abuse, the agony she is going through and the opinion of the medical board favouring termination of pregnancy, the abortion should be allowed, the court ruled.
The development immediately brought to mind the 10-year-old child from Chandigarh, who, in July, had been denied abortion in a similarly advanced stage of pregnancy, the result of repeated rapes by a relative. The child delivered a 2.2 kg baby girl on August 17, which the family had signed off for adoption in advance. The child mother was not even aware that she had delivered a baby—she was told the doctors were removing a stone that cause her abdomen ache. The Supreme Court bench of then Chief Justice J.S. Khehar and Justice D.Y. Chandrachud had their empathy with her, and even asked whether a permanent medical board be set up at the state level to examine such cases till the law for abortion was amended.
Was the age of the 10-year-old not a reason for abortion? Or was her trauma different? No. The difference was in the opinion of the medical board, which in one case believed that delivering a pre-term child (most likely with childhood pregnancies) would require Neonatal Intensive Care and that the child's birth would be detrimental to both the child as well as the underage mother. In the case of the 10-year-old, the medical board believed that the abortion itself was too risky for the mother, since she was in such an advanced stage of pregnancy.
Experts point out that in the case of granting permission to abort beyond the 20 weeks established under the Medical Termination of Pregnancy (MTP) Act, it is the decision of the medical board or doctor attending to the woman which counts. A court has to go by that decision. This is Section 5 of the MTP Act, and activists say that it does not entail that the woman should go to the court to get the sanction. If the doctor attending her feels, in good faith, that going ahead with the pregnancy is harmful for her health, the abortion can be conducted. “Harmful to health” is a subjective term. Is it only the immediate medical crisis of an advanced pregnancy abortion that is harmful to health? Is having the child at such an early age, which is the outcome of rape, also harmful to the woman's health?
Vinoj Manning, executive director of Ipas Development Foundation, which has worked in the area of safe abortions, said that while the recent verdict was welcome, “we do regret that the girl, and her family, like in many similar cases, had to appeal to the apex court for relief and bear the extended period of mental and physical trauma. Section 5 of the MTP Act allows the doctor to take a decision in good faith for termination of pregnancy beyond 20 weeks to save the life of the pregnant woman.'' He pointed out that the risk posed by a full term delivery to the life of a 13-year-old, which the JJ hospital team cited, was in line with clinical evidence that childbirth in very young girls is high risk. It would have applied to the ten-year-old as well.
Health activists note that a lot of unnecessary delay and trauma can be avoided if doctors invoked this discretionary power. However, it seems that no one wants to take such risks, doctors are wary of being blamed if something goes wrong, as can occur in such high risk procedures.
In 2008, there was the case of a Mumbai woman, Niketa Mehta. Doctors detected an abnormality in her foetus, but by then the pregnancy had crossed the 20 week mark. She appealed to the Bombay High Court for an abortion, but going by the opinion of the medical board, the court turned down the request. The pregnancy was not threatening her life, doctors maintained, although they agreed that the child would have many complications, and require a pacemaker. Mehta had a miscarriage at 26 weeks.
The MTP Act is of 1971 vintage with an amendment in 2003. There is a draft amended act which is yet to be implemented, and activists feel that it is not as comprehensive as it could be. Abortion is not so difficult in India as it is in many western nations. However, there is still a big unmet need for safe abortions.
The MTP Act, despite its flaws, does keep the woman central to the abortion although recent interpretations by doctors look into the health of the foetus too, and often over look the impact of the baby on the mother's mental health. Under existing law, the abortion can be done till 20 weeks with just the consent of the mother. She neither needs her family's or her doctor's approval. The reasons for getting an abortion that can be cited are:
>> Risk to her physical health due to the pregnancy
>> Malformed fetus
>> Pregnancy of an unmarried girl under 18 (requires consent of guardian)
>> Pregnancy in “lunatics'' (requires consent of guardian)
>> Failed contraception
The failed contraception clause is only valid for married women, and there is a demand that all women be covered under this clause. However, even with so many reasons to allow for abortion, many do not get it done because the pregnancy is detected very late. In the case of both the child rape victims cited above, the pregnancies were discovered only after 20 weeks had elapsed. Even then, doctors could invoke section 5 of the act, says Manning. “But we believe doctors need to be assured that their actions, taken in good faith, will be honoured,'' he said.
After the case of the 10-year-old, the Supreme Court had asked the government to have state level medical boards to ensure that victims got timely opinions. Manning says that while that is welcome, “we strongly urge for more effective utilisation of Section 5 of the MTP Act, so doctors can ensure timely and compassionate care for women and girls.''