Abortion and Sexual Violence: Reform Beckons

- Dhruva Gandhi*


The Medical Termination of Pregnancy Act, 1971 (‘the Pregnancy Act’) allows termination of pregnancy in case its continuation would involve a risk to the life of the mother or would be detrimental to her physical or mental health.[1] The risk has to be assessed by a medical practitioner registered under the Pregnancy Act.[2] The Pregnancy Act also clarifies that when a pregnancy is alleged to have been caused by rape, the anguish caused thereby shall be presumed to constitute a grave injury to the mental health of the woman.[3] What is notable though is that a termination of this nature is permissible only in those cases when the length of the pregnancy does not exceed twenty weeks. Beyond twenty weeks, termination can be done only when a registered medical practitioner is of the opinion, formed in good faith, that such termination is “immediately necessary to save the life of the pregnant woman.”[4]


In case of pregnancies caused by rape and other sexual violence, this limit of twenty weeks has attracted considerable attention over the last few years as constitutional courts have been petitioned on multiple occasions to allow a termination even after the expiry of that deadline.[5] A notable instance that brought this issue to the forefront was when in the last year two cases reached the Supreme Court seeking to allow the termination of pregnancies caused by sexual violence. In both cases, the length of the pregnancy was thirty-two weeks. While the court allowed termination in one case,[6] it refused it in the other.[7] There have been several other cases where courts have either allowed or disallowed termination. Divergent judgements of this nature have created a state of confusion among legal scholars and social commentators. Given that the life and well-being of several pregnant women is contingent on the position of law on this point, it is imperative that this state of confusion be resolved at the earliest.


In this paper, the attempt of the author is to contribute towards doing so. To this end, there are three questions that the author believes must be explored and that he seeks to answer. One, why is the twenty weeks’ limit being pushed so frequently in case of pregnancies caused by sexual violence? Two, why is there a state of confusion on account of the case law on this point? Three, being cognizant of these reasons, what solutions can be considered to address the two problems?


Framing the Problem: A Sociological Analysis

In 2004, two organisations- Population Council and the Centre for Operations Research and Training- prepared a Report on abortions in Rajasthan.[8] The Report found that only 16 percent of male and 17 percent of female respondents knew that abortion was legal in our country. More than half of them believed that it was illegal.[9] Out of those who knew that it was legal, only 54% of the male respondents knew that it was legal for an unmarried woman to undertake an abortion.[10] A case study conducted in rural Maharashtra too, presented similar findings.[11]


Out of the women who had undergone an abortion, 59% had done so to limit the size of their family and 22% wanted to space the birth of their children. The rest had undertaken an abortion because of problems in their health, foetal malformation or contraceptive failure.[12] A similar Report titled, ‘Abortion Assessment Project’ prepared on a pan-India basis too showed similar findings vis-à-vis the reasons for abortions.[13]


What these numbers tell us is that the total number of people who are aware about the legality of abortion is small. The number that knows that it is legal for unmarried woman to undertake an abortion is smaller. And, the number of women who undertake an abortion because their pregnancy was caused by sexual violence seems to be unknown or miniscule, at best. What is also to be noted is that none of these studies have any qualitative or subjective mention either of such abortions. Why this is the case is definitely a question that needs to be pondered over. Are respondents hesitant to reveal that they had to undertake an abortion because their pregnancy was caused by rape? Or, are survivors in sexual violence cases not accessing or not able to access abortion services?


One of the ways to understand whether survivors in sexual violence cases access abortion services is to study the medical treatment and counsel provided to them at the first point of contact. In 2008, US AID along with Population Council conducted a situational analysis of the care and support provided to rape survivors at the first point of contact in Delhi, Vadodara and Lucknow.[14] It was found that medical care was provided in 83% of the cases surveyed.[15] However, only 50% of the doctors surveyed stated that their patients had asked queries about pregnancies.[16] While a vaginal and external examination was conducted in all cases,[17] there is no mention of any tests being conducted to detect pregnancy or of any abortion-related services/counsel being provided.


Matters have remained unchanged even after the enactment of the Criminal Law (Amendment) Act, 2013, a statute that introduced several provisions with respect to the care to be provided to survivors of sexual violence.[18] In 2015, a study of select rape trials in Delhi undertaken by Partners for Law in Development observed that on many an occasion doctors had a hostile attitude towards survivors and were more often than not concerned only with an examination of external injuries and the sexual history of the patient.[19] In a similar study, the Human Rights Watch observed that there was a need to provide for safe abortion services at the first point of contact to rape survivors.[20] What is also unfortunate is that the Guidelines and Protocols on Medico-Legal Care for Survivors/Victims of Sexual Violence, 2014 published by the Ministry for Health and Family Welfare, too, are silent on abortions.[21]


Therefore, when it comes to termination of pregnancies caused by rape, one of the foremost problems that need to be addressed is in terms of access and availability of abortion services to survivors at their first point of contact. The non-availability of these services early on could be one of the reasons why these pregnancies are carried on well into the second trimester and abortion is sought close to the statutory limit.


Before we consider solutions to address this problem, there is another aspect of the Report prepared by the Human Rights Watch and one that has been supported by several other social commentators that needs to be noted. In many cases, the rape itself is detected or reported when the woman is already some weeks into her pregnancy. It is not uncommon to find a woman already in her second trimester when the incidence of rape comes to light.[22] In case of minors, this could be because they are unaware and parents discover the pregnancy when a bulge appears; whereas adult women may be hesitant to come forth on account of a fear of social stigma. In either case, the point of concern is that the woman is already near the statutory limit of twenty weeks when she decides to opt for abortion. Doctors are hesitant to terminate a pregnancy after twenty weeks have elapsed because of the fear of a criminal prosecution[23] and hence, we see cases filed before constitutional courts. In the past few years, there has been a splurge in such cases. This paper will now take a look at these cases to understand the other problem that confronts this area of law.


Survey of Case Law

The author came across about twenty instances in the last three years when constitutional courts were petitioned to allow a termination of pregnancy caused by sexual violence after the statutory limit of twenty weeks had expired.[24]These twenty cases can broadly be divided into two, cases where the plea for abortion was turned down and those where it was allowed.


Pleas for Abortion Refused

In cases where the plea for abortion was refused, there was one set of cases where the courts said that the statute allowed termination only when the length of pregnancy did not exceed twenty weeks and after that, termination was allowed only if it was necessary to save the life of the mother.[25] They said that the statute lays down the mandate and must be upheld in all circumstances even though it may lead to an unjust outcome. While they had sympathy for the plight of the victim, they emphasized that the law on this point was clear.[26] In another set of cases where termination was disallowed, the courts did not seem as keen to uphold the statute. Instead, the plea was refused because the pregnancy was in an advanced stage and the judges reasoned that it may not have been safe to terminate it.[27] There were no cases where the courts rejected the plea solely on the ground that the continuation of pregnancy did not pose a threat to the life of the mother.


Pleas for Abortion Allowed


Adverse Impact

In cases where the plea for termination was accepted by the courts, we come across a set of cases where the court allowed an abortion because they were of the opinion that the continuation of pregnancy may have had an adverse impact on the physical and mental health of the mother.[28] Only in one of these cases did the court suggest that the abortion was necessary to save the life of the mother.[29] In the others, the courts seem to have implicitly accepted the adverse impact on health to be a sufficient ground to allow termination after twenty weeks.[30] Interestingly, in one of the cases the court did so expressly. It observed that the petitioner was not mentally prepared to deliver a child and that stress caused on account of delivery would be immense. The court stated that this mental stress must be treated at par with the statutory condition, “necessary to save the life of the pregnant woman”.[31]


Now, if an adverse impact on health is to be considered as a sufficient ground to terminate pregnancy after twenty weeks, how is it to be balanced with the risk posed by termination at an advanced stage of pregnancy to the health of the woman?


‘Not’ in an advanced stage

Interestingly, in another set of cases, the courts even allowed termination because the pregnancy was not in that advanced a stage and it could be terminated without posing a threat to the life of the mother.[32] However, they did not tell us as to when does a pregnancy enter that advanced a stage that termination cannot be allowed.


Best Interest

Lastly, there was a third set where termination was allowed because it was in the best interests of the pregnant woman.[33] While the courts did not explicitly state what constitutes ‘best interests’, some of the factors that weighed in on them were the young age of the pregnant mother, the mental stress caused by the pregnancy and the fact that the child may serve as a reminder of the rape.[34] These cases too leave us with a few questions. What constitutes the ‘best interest’ of a pregnant woman? Was it not in the best interests of the mother to allow termination even in those cases where the courts observed that the twenty weeks’ limit is the law of the land and must be upheld? Can there be a situation where a pregnancy can be terminated without posing a threat to the life of the mother but it would not be in her best interests to do so?


Admittedly, there seem to be no easy or ready answers to these questions. While these questions poignantly show why there is a state of confusion, what they tell us though is that the outcome of a petition filed to allow termination after the expiry of twenty weeks seems to be a matter of chance. This is so because in the absence of well-laid out criteria, the parameter used to decide the case effectively boils down to the judge concerned and to their predilections. Evidently, this is an arbitrary state of affairs and is undesirable.


Prospective Solutions

Now that the contours of the problems that confront us are known, certain solutions may be considered to address them. In this paper, the author seeks to propose certain legislative changes that can be made to solve these problems.


Firstly, an amendment must be made to the Pregnancy Act. The Medical Termination of Pregnancy (Amendment) Bill, 2014 already proposes to increase the limit of twenty weeks to twenty-four. For a termination beyond that period, the condition is the same, that is, it “must be necessary to save the life of the pregnant woman”. While we did see that there are divergent judgements on whether termination should be allowed when pregnancy enters an advanced stage, on most occasions the court was considerably influenced by the medical opinion. And, the court always refused the plea for termination when it posed a threat to the life of the mother.[35]


Borrowing from this, a section can be added to the Pregnancy Act to say that in cases of pregnancies caused by rape, when the period of twenty-four weeks has expired, the registered medical practitioner shall terminate the pregnancy if the woman wants to do so and if in the opinion of that medical practitioner such termination will not pose a grave threat to the life or to the mental or physical health of the woman. Thus, it is proposed that an exception be carved out to the general exception in recognition of the trauma caused by pregnancies arising out of rape and of the social reality of late detection.


An amendment of this nature will not only respect the reproductive choice of the woman, it will also take away the hesitation on part of doctors to terminate pregnancies in advanced stages. Moreover, women will not need to approach constitutional courts to secure an abortion. This will save them from the costs and agony of litigation. It will also reduce the inequity of the present state of affairs in that only those rape survivors who can afford the expenses of litigation are currently able to petition for an abortion.


In addition, certain amendments must also be made to the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”). Section 164-A of the Cr.P.C. talks about the medical examination of a rape victim. It says that the medical practitioner must make note of the mental condition of the woman, the injuries caused, material taken for DNA profiling and other material particulars.[36]


It is proposed that this section be amended to require the medical practitioner to check the woman for pregnancy as well. In case the woman is pregnant, the section must require the doctor to ask her (or her guardians if she is a minor) if she wants to medically terminate the pregnancy. Further, if the woman wants to do so, the doctor must be required to terminate the pregnancy as per the Pregnancy Act or to forward the patient to a registered medical practitioner qualified to do so. Keeping in mind the requirements of a criminal trial, the doctor must also collect material from the foetus and annex its DNA analysis to the Report sent to the Magistrate under this section.


Medical science today allows for a detection of pregnancy within the first fortnight of fertilisation.[37] Nevertheless, to lean on the side of caution, a proviso can be added to address situations when the incident is reported within the first fortnight. In those cases, a follow-up should be required five or six weeks after the incident. Moreover, in the first trimester pregnancy can be terminated without any surgical intervention.[38] By means of this amendment thus, abortion services can be offered at the first point of contact. Not only will this allow pregnancies in cases of sexual violence to be terminated at the earliest and in most cases within the limits prescribed under the Pregnancy Act, it may also increase the availability of and access to abortion services in these cases.[39]


To achieve these objectives, a similar amendment must also be made to Section 357-C of the Cr.P.C. This section directs all hospitals, whether public or private to provide medical treatment or first-aid free of cost to all rape survivors.[40] It must be required to detect pregnancies and offer abortion services as well.


Conclusion

Admittedly, these legislative changes will not be sufficient by themselves. They will need to be supplemented with a training of doctors, provision of necessary medical equipment at crisis centres, counselling services and the like. Nevertheless, it is proposed that these legislative amendments can be considered as a starting point to address the problems that confront us in this area of law.


*Dhruva Gandhi is a 5th year B.A. LL.B (Hons.) student at the National Law School of India University, Bangalore.



[1]Medical Termination of Pregnancy Act § 3(2) (1971).


[2]Id.


[3]Medical Termination of Pregnancy Act Explanation 1, § 3(2) (1971).


[4]Medical Termination of Pregnancy Act § 5 (1971).


[5]See Agence France-Presse, Indian Court allows 10-year old rape victim to have an abortion, The Guardian (May 17, 2017), https://www.theguardian.com/world/2017/may/17/indian-court-allows-10-year-old-victim-to-have-an-abortion and Menaka Rao, The cases of two chid-rape victims show why India needs guidelines for late-term abortions, Scroll.In (Sept. 13, 2017), https://scroll.in/pulse/850425/the-cases-of-two-child-rape-victims-show-why-india-needs-guidelines-for-late-term-abortions.


[6]Murugan Nayakkar, Writ Petition (Civil) No. 749/2017 (Dipak Misra CJI, Amitava Roy & A.M. Khanwilkar JJ.) (Supreme Court of India).


[7]Alakh Srivastava v. Union of India Writ Petition No. 565 of 2017 (J.S. Khehar CJI., D.Y. Chandrachud J.) (Supreme Court of India).


[8]Batya Elul et al., Unwanted Pregnancy and Induced Abortion: Data from Men and Women in Rajasthan, India (2008). .


[9]Id., at 29.


[10]Batya Elul, supra note 8, at 30.


[11]Manisha Gupte, Abortion Needs of Women in India: A Case Study of Rural Maharashtra, 5(9) Reprod. Health Matters 77, 81 (1997).


[12]Batya Elul, supra note 8, at 19.


[13]Ravi Duggal & Vimala Ramachandran, The Abortion Assessment Project-India: Key Findings and Recommendations, 12(24) Reprod. Health Matters 122, 126 (2004). While this Report does not carry as much detail, it supplements the other studies discussed before.


[14]M.E. Khan et al., A Situation Analysis of Care and Support for Rape Survivors at First Point of Contact in India and Bangladesh (2008).


[15]Id., at 15.


[16]M.E. Khan, supra note 14, at 18.


[17]M.E. Khan, supra note 14, at 17.


[18]Code of Criminal Procedure § 357C (1973) and Indian Penal Code § 166B (1860).


[19]Partners for Law and Development, Towards Victim Friendly Responses and Procedures for Prosecuting Rape 13-14, 17, 19 (2015).


[20]Human Rights Watch, Barriers to Justice and Support Services for Sexual Assault Survivors in India (2017)


[21]Guidelines & Protocols- Medico-legal care for survivors/victims of sexual violence (2014).


[22]Human Rights Watch, supra note 20.


[23]Nikhil Datar, Indian women seeing abortions beyond 20 weeks face desperate legal struggles, Scroll.in (Jan. 17, 2017) https://scroll.in/pulse/826747/indian-women-seeing-abortions-beyond-20-weeks-face-desperate-legal-struggles. See also Aarti Dhar, Ambiguity in abortion, other laws puts doctors in a fix, The Hindu (June 8, 2016)t http://www.thehindu.com/news/national/ambiguity-in-abortion-other-laws-puts-doctors-in-a-fix/article5161297.ece.


[24]Admittedly, there could have been more instances. The author came by these twenty cases based on a search of the SCCOnline database for the keywords, ‘abortion’, ‘rape’ and ’20 weeks’ and on a survey of cases reported in popular media. There were not many cases before this time period that seemed to deal with this issue. The few that were found confirmed the trends that emerge from these twenty cases.


[25]Chandrakant Suthar v. State of Gujarat, Special Criminal Application No. 4255 of 2015 (Abhilasha Kumari J.) (Gujarat High Court); Sundarlal v. State of Madhya Pradesh, Writ Petition No. 20961/2017 (Sujoy Paul J.) (Madhya Pradesh High Court) (hereinafter Sundarlal); Ashaben v. State of Gujarat, AIR 2015 CC 3387 (Gujarat High Court) (hereinafter Ashaben).


[26]Sundarlal, Writ Petition No. 20961/2017 (Sujoy Paul J.) (Madhya Pradesh High Court), ¶ 16; Ashaben, AIR 2015 CC 3387, ¶ 32, 34.


[27]Alakh Srivastava v. Union of India Writ Petition No. 565 of 2017 (J.S. Khehar CJI., D.Y. Chandrachud J.) (Supreme Court of India), ¶ 2; Harjit Kaur v. State of Punjab 2016 1 RCR (Cri) 878 (Punjab & Haryana High Court), ¶ 7.


[28]Ms. X v. Union of India, Writ Petition (Civil) No. 593/2016 (J.S. Khehar CJI, Arun Mishra J.) (Supreme Court of India) (hereinafter Ms. X); Chandrakant Suthar v. State of Gujarat (2015) 8 SCC 721 (Supreme Court of India) (hereinafter Chandrakant Suthar); Ms. X v. State of Kerala, Writ Petition (Civil) No. 35034 of 2016 (S.P. Chaly J.) (Kerala High Court); Murugan Nayakkar v. Union of India, Writ Petition (Civil) No. 749/2017 (Dipak Misra CJI, Amitava Roy & A.M. Khanwilkar JJ.) (Supreme Court of India) (hereinafter Murugan Nayakkar).


[29]Chandrakant Suthar, (2015) 8 SCC 721, ¶ 4.


[30]Ms. X, Writ Petition (Civil) No. 593/2016 (J.S. Khehar CJI, Arun Mishra J.) (Supreme Court of India), Pg. 5; Murugan Nayakkar, Writ Petition (Civil) No. 749/2017 (Dipak Misra CJI, Amitava Roy & A.M. Khanwilkar JJ.) (Supreme Court of India) Pg. 2.


[31]Ms X. v. State of Kerala, Writ Petition (Civil) No. 35034 of 2016 (S.P. Chaly J.) (Kerala High Court) ¶ 10.


[32]Bhavakiben v. State of Gujarat, Special Criminal Application No. 1155/2016 (Sonia Golanki J.) (Gujarat High Court); Pujaben Yadav v. State of Gujarat, Special Criminal Application No. 3095/2017 (Pardiwala J.) (Gujarat High Court) ¶ 7; Bhatao Boro v. State of Assam, Writ Petition (Civil) No. 6307/2017 (Hrishikesh Roy J.) (Gauhati High Court) ¶ 13.


[33]Bhavakiben v. State of Gujarat, Special Criminal Application No. 1155/2016 (Sonia Golanki J.) (Gujarat High Court); Madhuben Nimavat v. State of Gujarat, 2016 SCCOnline Guj 662 (Gujarat High Court), ¶ 13.


[34]Madhuben Nimavat v. State of Gujarat, 2016 SCCOnline Guj 662 (Gujarat High Court), ¶ 13.


[35]Alakh Srivastava v. Union of India Writ Petition No. 565 of 2017 (J.S. Khehar CJI., D.Y. Chandrachud J.) (Supreme Court of India), ¶ 2; Harjit Kaur v. State of Punjab 2016 1 RCR (Cri) 878 (Punjab & Haryana High Court), ¶ 7.


[36]Code of Criminal Procedure § 164-A (1973).


[37]Understanding Pregnancy Tests: Urine and Blood, American Pregnancy Association (Mar. 4, 2017), http://americanpregnancy.org/getting-pregnant/understanding-pregnancy-tests/ ;Knowing if you are pregnant, Office on Women’s Health, U.S. Department of Health and Human Services (February 1, 2017), https://www.womenshealth.gov/pregnancy/you-get-pregnant/knowing-if-you-are-pregnant.


[38]Abortion Procedures, American Pregnancy Association (April 7, 2017), http://americanpregnancy.org/unplanned-pregnancy/abortion-procedures/.


[39]Although when viewed from a crime control or due process model of criminal law, this amendment could be termed as a misfit in a law of criminal procedure, this would not be the case from the perspective of a survivors’ rights model.


[40]Code of Criminal Procedure § 357-C (1973).

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