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A laudable judgment of the Madras High Court has said that rape survivors who are pregnant with foetuses less than 20 weeks’ old don’t need the permission of medical boards to abort them

By R Ramasubramanian in Chennai

In a far-reaching move, the Madras High Court has given hope to rape survivors. Justice N Anand Venkatesh in a recent judgment made it clear that rape survivors who are pregnant with less than 20 weeks’ old foetuses do not require the permission or approval of medical boards for an abortion. Further, relying on Section 3 of the Medical Termination of Pregnancy Act, 1971, it said that pregnancies under 12 weeks could be aborted on the basis of a medical opinion of a single doctor and those over 12 weeks but under 20 weeks could be aborted after getting a detailed opinion from two doctors. The Court said that such an opinion was necessary if continuation of the pregnancy could result in grave danger to the mother or the child being born with severe physical or mental abnormalities.

The judgment followed a petition by a rape survivor who was pregnant. The petitioner said in her affidavit that she had a relationship with one Naveeth Ahamed. She said Ahamed had stealthily taken certain videos of her and had pressurised her to have a sexual relationship with him. This continued under threat. Later, the mother of the survivor filed a police complaint and an FIR was registered under Sections 354, 354A, 354C of the IPC and Sections 66E and 66A of the Information Technology Act. The mother also gave a statement before a magistrate, detailing the intimidating tactics adopted by Ahamed for having sex with her daughter, which resulted in her becoming pregnant.

Though the petitioner approached the concerned police station for arranging an abortion, it did not oblige. The survivor then got herself admitted to a government hospital for an abortion. Initially, the hospital agreed to perform it, but later insisted that police officials must be kept in the loop. It said that as it was a rape case, the conceptus (embryo) had to be sent for analysis to the forensic department. After heated arguments between the survivor’s relatives and the doctors, she got discharged without an abortion.

Later, she approached the High Court, which directed the Government General Hospital in Chennai to admit her and evaluate her physical and medical condition and then proceed with the abortion. Accordingly, a medical board evaluated her condition and found that she was carrying a foetus which was eight to 10 weeks old and decided to abort it. On June 17, 2019, the abortion was carried out, and it was reported to the High Court the next day.

Justice Venkatesh in his judgment said that Section 3 of the MTP Act makes it clear that the anguish caused to a rape survivor by her pregnancy should be presumed to constitute a grave injury to her mental health. Thus, any doctor dealing with a rape survivor carrying a foetus less than 12 weeks old or 12 to 20 weeks old could carry out an abortion on her after obtaining her consent or the consent of her parents/ guardians if she was a minor and this shall be done without referring the victim to a medical board, the judge said. Further, he issued a series of guidelines for abortions for rape survivors.

  • A rape survivor with an unwanted pregnancy and where the pregnancy has not exceeded 20 weeks shall not knock on the doors of a court. She shall not be referred to a medical board and her required abortion should be done as per Section 3 of the MTP Act.
  • Even in cases where the length of the pregnancy exceeds 20 weeks, it can be terminated in accordance with relevant laws. The victim may approach the High Court and it will refer the matter to the permanent medical board and the board will ensure immediate action and submit a report to the court, based on which a decision can be taken.
  • A DNA test of the conceptus is mandatory in abortion cases where a criminal case is pending.

The Court then directed the state health department and the DGP to strictly implement these guidelines by issuing adequate circulars to all those concerned. The government has also been directed to issue a circular informing the concerned functionaries of these guidelines.

The judgment has evoked positive responses from public health activists, lawyers and doctors. “This is a good development. The general attitude in India towards abortion is basically conservative. But this judgment tries to alleviate that pain and agony of a rape survivor. Even parents have started to get emboldened to allow an abortion for a survivor. But we still have a long way to go,” said J Raman, a lawyer.

While activists welcomed this decision, they said that at the ground level, many things have to be changed. “Not only the attitude of the government but also that of society towards abortion has to be changed. They should realise that women have the liberty to decide whether to continue with a pregnancy or not. No legal, administrative or political barrier should be allowed in this issue,” said Kavitha Muralidharan, an activist and writer. She adds: “By refusing her a safe abortion, you are actually pushing her to an unsafe one. There are clinics mushrooming in Tamil Nadu without any adequate medical expertise and they are indulging in unsafe abortions. So by refusing to perform a medically safe abortion, we are strengthening the services of quacks.”

The MTP Act allows an abortion after getting a single doctor’s medical opinion if the pregnancy is 12 weeks old or less. If the pregnancy is over 12 weeks old but below 20 weeks, a medical opinion must be procured from two different doctors and this is mandatory. Also, only a registered allopathic physician in a registered facility is authorised to conduct the procedure. If the pregnancy is more than 20 weeks old, abortions are legally permissible only if a specially constituted medical board opines that the continuation of the pregnancy poses a threat to the mother’s life.

Public health professionals, doctors, lawyers and activists say the MTP Act itself is one of the major problems in this issue. “The Act is an outdated one. There are many issues with it. The required gestational period of 20 weeks for abortions is not only an arbitrary one but also grossly outdated. Rare foetal abnormalities can be detected through an ultrasound only around this period and the mother is usually past the 20-week milestone by the time these can be confirmed. Further, the Act does not recognise a woman’s choice in asking for an abortion, as legally, she remains at the disposal of a physician’s judgment even in the early stages of pregnancy,” said Dr C Raveendran, a physician.

However, with this judgment, a pregnant woman, especially one who has undergone a rape, can now take life choices that will set her free.

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