A recent judgment which allowed a raped girl to abort her 24-week fetus is being lauded for its sensitivity. What are the medical and psychological reasons for allowing this termination?
By Shobha John
It was a heart-rending case evoking horror and sympathy. But it terminated in a landmark judgment which showed the humane side of the legal system and sho-uld be emulated by courts elsewhere in India.
It dealt with a 14-year-old girl in Gujarat, raped by a doctor who was treating her for typhoid. He allegedly sedated her and committed the heinous act. But she kept quiet about it till it was legally too late for an abortion. The doctor was later arrested. Though the parents approached a sessions court and later, the Gujarat High Court, pleading for abortion, both rejected it, saying the law had to be obeyed. The matter finally reached the Supreme Court, where a two-judge bench allowed her to terminate her ill-timed pregnancy despite the fetus being 24 weeks old.
The case riveted the nation and set the ball rolling for future judgments of this nature. In this case, abortion was untenable as the Medical Termination of Pregnancy (MTP) Act, 1971, allows it only up to 20 weeks. The Supreme Court bench of Justices Kurian Joseph and Anil R Dave had to decide whe-ther to take a humanitarian view or a legal one. Should they be pro-life or pro-choice? What about the girl’s right to personal liberty as guaranteed under Article 21 of the constitution? As the debates went on, the baby reached 24 weeks even as the distraught young mother refused the option of giving the baby up for adoption. Torn between these two choices, the court asked a team of doctors, including a psychologist, whether MTP was the best answer. Thankfully, the doctors said yes and the baby was aborted.
So how did the girl’s lawyers manage to work around the MTP Act? By stressing on the “mental health” of the mother and the grave injury caused to it by the rape. While the physical well-being of the mother is important, so is her mental state to bear and look after the baby, which, in this case, was absent. Her father, a cycle mechanic, was reported as saying: “She would keep crying. I couldn’t console her….When I saw her situation, I felt like committing suicide.”
Pulkit Sharma, a clinical psychologist who has worked at VIMHANS and Swan-chetan, an NGO which deals with rape
victims, explains the trauma faced by a young girl who becomes a mother out of rape.
“In such cases, the mother will be mentally fragile and feel no bond with the child. Instead, there’ll be feelings of revulsion and hate, and these will have a fallout on the child too as he/she battles feelings of rejection and anger and becomes anti-social,” he says.
“The mother will see the child as an extension of the rapist. Even if she gets married later, the husband and his family may not want the child. The Indian social milieu is such that the mother often has no say in such situations,” he adds.
Dr Duru Shah, director of Mumbai-based Gynaecworld, a fertility clinic, and part of the ethics committee of the International Fede-ration of Gynecology and Obstetrics (FIGO), says the Supreme Court took the right decision as this was a safer option, medically. Shah explains that a 14-year-old girl is not a complete adult and is unfit for childbirth. “She is still getting taller, the pelvic bone structure is still getting formed and the hips are getting wider. If she delivers a child at 14 years, there will be damage to tissues in the pelvic and vaginal region and chances of the baby also getting distressed. Allowing her to abort the child now was definitely a safer option as later on, she would have had to opt for a Caesarian delivery,” she says. Incidentally, Shah is also the Chair of the Anti-violence against Women Cell of the Federation of Obstetric & Gynecological Societies of India.
Explaining the medical reasons for the legal framework of the MTP bill, Shah says that till 12 weeks, it is easy to remove a fetus through vacuum aspiration. “But after 12 weeks, the skeleton of the fetus starts growing and vacuum aspiration can be traumatic, causing a lot of bleeding. So if an abortion has to be done between 13-20 weeks, it is like a mini-delivery. The gynecologist gives the woman medications which make the uterus contract and she delivers. As there is pain, she is given painkillers,” says Shah.
While in India, the legal limit for abortion is 20 weeks, other countries have varied time limits (See Box “World at Large”). While in the UK, abortion is legal up to 24 weeks of pregnancy, the UK Abortion Act also prescribes specific situations, including mental health of the pregnant woman, to allow abortions after this time.
Even the US and China allow termination after 20 weeks in case of severe fetal abnormalities or to protect the mental or physical health of the mother.
On the other hand, there is Ireland, a Catholic country, where abortion is illegal unless it is to save the life of the mother. Ireland’s abortion laws came in for criticism with the death of Savita Halappanavar on October 28, 2012. Savita, an Indian dentist, suffered a miscarriage when she was some 17 weeks pregnant. She sought medical attention and treatment, but her requests for an abortion were refused. Instead, she was told that because the fetus had a heartbeat and her life did not appear to be in danger, it was not legal. On October 23, she collapsed and eventually died on October 28, 2012, due to septicemia.
Halappanavar’s death led to numerous protests and finally, Ireland passed the Pro-tection of Life during Pregnancy Act 2013, which provides for a woman’s right to an abortion if her life is at risk.
Shah says that in some cases, pregnancies have even been terminated at 33 weeks when the baby is severely malformed or some infections have reached the fetus from the mother. “Such terminations can be done as long as they are done ethically without causing pain to the fetus and there is a solid reason to do so,” she says.
In fact, the International Federation of Gynecology and Obstetrics (FIGO), has laid down ethical guidelines for induced abortion for non-medical reasons. These, it said, can be ethically justified in cases of incest or rape or when the mother’s life is threatened by a serious disease. When properly performed, it is, in fact, safer than term deliveries.
FIGO’s ethical guidelines say that:
Governments and other concerned organizations should make every effort to improve women’s rights, status, and health, and should try to prevent unintended pregnancies by education, by counseling, etc.
A woman’s right to autonomy, combined with the need to prevent unsafe abortion, justifies the provision of safe abortion.
Most people, including physicians, prefer to avoid termination of pregnancy. Such a doctor has an obligation to refer the woman to a colleague who is not opposed to inducing termination.
Very careful counseling is required for minors. When competent to give informed consent, their wishes should be respected. Otherwise, the advice of the parents or guardians and when appropriate, the courts, should be considered.
After appropriate counseling, a woman has the right to have access to medical or surgical induced abortion, and the health care service has an obligation to provide such services as safely as possible.
Dr Ranjana Kumari, a women’s rights activist and director of the Delhi-based Center for Social Research, too lauds the Supreme Court judgment. “This is a landmark judgment and all courts in India should take cognizance of it. After all, a woman has a right over her body. Plus, in this case, the girl was violated, so there is all the more reason to allow this abortion,” she says. Each case should be taken on its merit and as long as it is medically safe, such abortions should be allowed.
However, she does not support late termination of a pregnancy just because it is being done in other countries. “Our health delivery systems and medical technology are not so robust and there could be chances of mishaps. The present MTP law of abortion till 20 weeks is good enough,” she stressed.
Meanwhile, the MTP (Amendment) Bill, which has provisions for extension of the legal limit for abortion from 20 weeks to 24 weeks, is still being formulated. Many doctors feel that if certain abnormalities are found in the fetus even after 20 weeks, MTP should be allowed till 24 weeks because by then, these abnormalities (eg cardiac problems) can be clearly seen.
While this case of the 14-year-old rape victim may be an open-and-shut case for most of us, the law of the land has the final say. But rare and uplifting judgments such as this one show that, at times, humaneness takes precedence over everything else.