The right to life debate is back in the public domain. A 10-year-old girl from Chandigarh, who was reportedly raped by her uncle for seven months, had approached Supreme Court with a plea to terminate her 32-week pregnancy. On July 18, the plea was rejected by the apex court, citing the 20-week limit as prescribed by The Medical Termination of Pregnancy Act (MTP), 1971.
Legally, the ruling is correct. But there are social and medical angles to this case which merit more attention. Hence, the general rule of law cannot be applied, opine a few medicos. A petition is pending before the Supreme Court to extend the ceiling for the right to abortion. There is also the question of social stigma and family ‘honour’.
We seek opinions from medicos and legal experts to throw light on the various angles.
DR ABHAY SHETE, Gynaecologist, Medico-Legal Activist
The 20-week limit was decided probably arbitrarily at that time when the MTP ACT was introduced in 1971. The intention was to put an end to the illegal abortions which were taking place back then. There were abortion sticks, which were used to terminate the unwanted pregnancies, that caused perforation sepsis death or infertility.
In order to stop the maternal deaths from abortions, the law was introduced with a rider, that abortion cannot be done on demand. The rationale of 20 weeks was taken as the foetus was said to have its rights for survival over the maternal rights for termination. It was probably accepted that the foetus had the capacity to survive on its own if it delivers by 20 weeks. However, the lung capacity develops by 32 weeks and a good Neonatal Intensive Care Unit (NICU) can support the premature babies as early as 24 to 26 weeks.
The law also took into its purview that termination should not amount to infanticide, which would happen if child was able to survive after delivery.
The science of ultrasound developed much later in late 20th century and today it is possible to diagnose many foetal anomalies. The MTP ACT was amended in 2002 and some sections were introduced to prevent misuse of the act for female foeticide. However, it didn’t take into account the right of the mother to terminate abnormal foetus over 20 weeks. Most of the congenital anomalies can be diagnosed before 20 weeks. But the facilities to do foetal anomaly scan is available at select centres. The patients too do not take the advice to get ultrasound examination done when advised and go late. This brings about the friction between the patient and the doctors.
The administration is worried that it doesn’t have enough resources to monitor the already existing PCPNDT Act and till today it has only caused harassment to the honest doctors. The patients who demand such services get them done as they have the power and the finances to do so. The government is rightly worried as it will not be able to confirm every case of termination done for foetal anomaly. However, the individual woman has a right to bear only healthy children and termination is her right to life.
The doctors, when confronted with such cases, bring them before the judiciary and explain the futility of continuation of pregnancy. They bring forth the factors of mental anguish and financial and social burden in rearing such children who have no independent life or no living. The continued dependence may be a factor that the patients would not like to have.
DR NIKHIL DATAR, Medical Director, Cloud 9 Hospitals
The MTP Act says that legally it’s not possible to abort foetus after 20 weeks. However, in the last couple of years, I filed 12 cases before the Supreme Court to grant permission to abort fetuses which were older than 20 weeks. Barring two cases, the Supreme Court granted permission for the rest of the pleas.
In fact on July 18, on the same day, when the Supreme Court rejected the 10-year-old girl’s plea, another bench of the apex court, ruled in favour of a 21-year-old woman who was 24 weeks pregnant.
In all these cases, the court has gone by the opinion of the medicos — whether it’s safe to terminate the pregnancy or not; whether mother’s health is endangered or no. The Supreme Court in its rulings has said that the law needs to be stretched.
On a policy level, it is wrong to assume that as the weeks advance, it’s risky to terminate the pregnancy. Internationally, there is a lot of data available that says the risk in terminating the abortion is the same as that of the delivery. So it doesn’t really matter if the girl is 32 or 20 or 38 weeks pregnant.
In this particular girl’s case, it is said that the 10-year-old has cardiac issues. So if she has been recently operated upon, and needs to rest and recover from the surgery, but at the same time, her delivery date approaches, then medically, it is correct, to reject her right to terminate the pregnancy.
However, this cannot be generalised. Each case raises different points and needs a different perspective. The Act requires to be amended, and all the cases in the recent years, are leading to that.
Advocate RAMA SARODE
There are a few points that I would like to make. First, this case is an ‘aggravated penetrative sexual assault’. And, the perpetrator, the uncle, merits life imprisonment under the Protection of Children from Sexual Offences Act (POCSO).
Secondly, there are questions raised as to why the parents approached the court when she was already 30 weeks pregnant? The law (refer to the box) requires two doctors to recommend abortion if it’s within 12 and 20 weeks. If it’s more than 20 weeks, then the case to seek the permission to terminate the pregnancy will be filed at High Court or Supreme Court. In this minor girl’s case, the parents probably didn’t have required guidance or finances to approach the court.
As a part of its judgement on this case, the Supreme Court has asked for formation of committees at district level, so that the rape survivors can get access to justice without a long delay. The committee, whenever it is formed, has to decide on the case within a given time frame. Such cases also call for inter-departmental co-ordination between medicos, police and the judiciary.
I also think that social factors like family honour, fear of the girl’s character assassination, added to their dilemma. The pregnancy could get this far because it is quite normal for the menstrual cycle to be irregular in the initial years. And, she or the parents wouldn’t have realised that the missing menstrual cycle could signal pregnancy.
Considering the girl’s cardiac ailment, her pregnancy is going to be difficult, as also the abortion, if it was done. Her life is endangered in either case.
WHY IT MUST HAVE OCCURRED?
Most of these episodes are a result of patriarchy, and power equations within the family.
Usually, the perpetrators assume that “they can get away”. We need a holistic approach to prevent crime. While the arrests and convictions must be done, there is a need to work with the convicted prisoner, even after the crime is proven, so that they don’t become habitual offenders later. The thoughts, beliefs and patterns of the prisoner need to correctly influenced.
THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971.
According to The Medical Termination of Pregnancy Act, 1971,
Pregnancies may be terminated by registered medical practitioners.
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
According to The Medical Termination of Pregnancy Act (1971) (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,
(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is of opinion, formed in good faith,
or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith, that -
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury, physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation 1: Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2: Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.