Home Columns

Medical Termination of Pregnancy for Rape Survivors: A Complex Landscape

Exploring the Nuances of Abortion Rights, Justice, and Timeliness in the Context of Medical Termination of Pregnancy in India for Rape Survivors

By Varghese George
New Update

Medical termination of pregnancy
Medical termination of pregnancy | Representative image | Photo courtesy: Special arrangement 

In India, the topic of abortion remains a contentious issue, eliciting a wide spectrum of opinions and beliefs. This is due to the myriad of religions and cultures that coexist within our nation. What is deemed morally acceptable by one segment of society may sharply contrast with the convictions held by others related to medical termination of pregnancy. Finding common ground amidst this diversity is challenging but essential.

Read More: Press Freedom: Government’s Stance – Rhetoric vs. Reality

The intricate nature of the debate extends beyond religious convictions. It is disheartening to witness how this matter often becomes a political battleground, with competing ideologies seeking to influence the narrative. Furthermore, the judiciary's involvement has added another layer of complexity. Inconsistent rulings and prolonged deliberations on crucial cases related to medical termination of pregnancy have left women in precarious situations. These legal uncertainties can force women into making choices that might not align with their personal values and needs.

The Kerala High Court's recent decision not to permit the abortion of a 30-week pregnancy in a case involving a 14-year-old rape survivor has sparked considerable debate. This decision was primarily influenced by the pregnancy's advanced stage. Strangely, the court also noted that reports on the file indicated that the young victim had not been forced by the rape accused. 

The mother of the young rape survivor had petitioned for the right to terminate her daughter's pregnancy and that the accused was booked under the Protection of the Children from Sexual Offences (POCSO) Act. The mother's legal representation argued that the girl, a mere child herself, should be allowed to end her pregnancy, given its traumatic origin in rape. Yet, the court, referencing the opinion of the Medical Board, concluded that an abortion was no longer a viable option. The Board's assessment was clear: at this advanced stage of pregnancy, the only course was to proceed towards a live birth.

What happened with the minor girl’s family is too tragic and there are no easy answers to the girl’s situation. But at the core of this troubling scenario lies the undeniable fact that the rape survivor is a minor. The harsh reality is that, long before she even had the chance to form her own judgments about what is right or wrong, this 14-year-old girl is now compelled to bear the tremendous burden of motherhood – a child herself, carrying the weight of another child's life within her.

Read More: Abortion laws: Why should India revise the Medical Termination of Pregnancy Act?

In a thought-provoking comparison, let us examine another recent case that came before the same Kerala High Court that shed light on the nuanced nature of judicial decisions involving minors and pregnancy. In this particular instance, the court faced the daunting task of deciding on the medical termination of pregnancy for a 15-year-old girl who had been impregnated by her own brother. At the time of the court's deliberation, the minor girl was already 32 weeks into her pregnancy. Recognising the social and medical complexities surrounding this situation, the court granted the victim the permission for termination of the pregnancy. The rationale behind this decision was the anticipation of severe social and medical complications arising from the birth of a child from the girl’s own sibling. In the eyes of the court, the necessity for allowing the termination of pregnancy in this case was all but inevitable.

As we delve into the intricacies of the two cases, a striking juxtaposition emerges. In the first case, the court chose to deny permission for the medical termination of pregnancy, while in the second, it granted this crucial authorisation. In the first case, the victim was a mere 14 years old, a stark contrast to the second case, where the minor involved was 15. It's worth noting that in the first case where the victim was denied permission, the girl had reached the 30-week mark of her pregnancy, while in the second case, the victim was two weeks further along at 32 weeks but was allowed to terminate her pregnancy. What makes this divergence in rulings most conspicuous is the fact that, in the first case, the accused was not related to the victim, whereas in the second case, the accused was none other than the victim's own brother.

The divergence in outcomes between the two critical court cases shows us the profound complexities inherent in legal proceedings involving minor rape victims. It prompts us to question the very essence of justice, morality, and the intricate interplay of societal norms and familial bonds. These cases question the role of the justice delivery system in safeguarding the rights and well-being of young victims thrust into unimaginable circumstances. In our ever-evolving world, the boundaries between right and wrong can often blur, leaving us in a moral grey area that demands careful consideration. The courts are expected to navigate this complex terrain with utmost compassion, wisdom and empathy for the victims. 

Read More: Virginity Test In India: Age-old Practice Still Prevalent

Beyond the heart-wrenching complexities of the cases themselves, another critical issue looms large in the sphere of medical termination of pregnancy: the troubling delay in hearing such cases and delivering timely justice. In these situations, time is undeniably of the essence, and the stakes are extraordinarily high.

Take, for instance, a recent case in Gujarat, where a rape survivor desperately sought permission for the medical termination of pregnancy at the 27-week mark. This was a race against the clock, where every moment counted. Regrettably, the Gujarat High Court's response was far from swift. Even when the medical report, a crucial piece of evidence, was presented before the court, it inexplicably scheduled the matter for consideration after 12 days. So many days were squandered, while the survivor's anguish and uncertainty continued to mount.

The Supreme Court ultimately emerged as the beacon of hope for the victim, delivering a scathing critique of the Gujarat High Court's handling of the case. The apex court did not mince words when it lambasted the Gujarat High Court for its apparent failure to comprehend the precious time that was slipping away in cases of such utmost significance. The top court called for an immediate reevaluation of the victim's medical condition and expedited the matter for urgent consideration.

The Supreme Court's admonishment was unequivocal: there must be a palpable "sense of urgency" instead of the unacceptable "lackadaisical attitude" that had thus far characterised the handling of pregnancy termination cases. In the Gujarat High Court’s case, the delay happened even in the wake of a medical report dated August 10 that unequivocally supported the victim's plea for a safe abortion. However, the High Court adjourned the matter to August 23. Adding to the perplexity, the high court also rejected the victim’s plea without providing any substantive reasons or disclosing the basis for its decision.

Across our nation, matters concerning rape survivors, particularly those involving the medical termination of pregnancy, often languish without the attention and priority they so desperately deserve within our judicial system. Victims find themselves mired in frustrating and interminable waits for their cases to be heard and for court orders to be issued. Regrettably, by the time these crucial orders do materialise, precious time has slipped away, exacting a heavy toll on many of these survivors. The extensive delays in hearing these cases and delivering not just timely but also correct decisions are, in effect, a denial of justice.

To ACCESS and SUPPORT our exclusive stories and impactful public interest journalism, subscribe to our YouTube channel. Click on THE PROBE'S LOGO below to subscribe.