Should the abortion law be amended for minor rape victims?

Can we start with an overview of abortion laws in India?

Dipika Jain: There are two sets of laws that regulate abortion in India. Sections 88 to 94 of the BNS [previously IPC] and the Medical Termination of Pregnancy (MTP) Act, 1971. Abortion is criminalised under Section 88 of the BNS, which means that a woman who terminates a pregnancy with her consent and the doctor who terminates her pregnancy for her with her consent and his consent can be criminalised. In 1979, there was an exception that was created via the MTP Act, which created a framework for conditional rights. Abortion in India is legal based on certain circumstances and conditions. The 2022 Supreme Court judgement also elaborates on abortion rights as fundamental rights. There are three components: unmarried women are entitled to seek termination; transgender persons are also included within the legal framework; and the right to terminate a pregnancy in India is part of [the] decisional autonomy of a woman or a pregnant person.

Alka Barua: The law looks fairly liberal, but there isn’t broad and progressive interpretation at the ground level. And there are reasons for it. One, the law places decision-making authority primarily with the doctors. So this gives scope for refusal based on personal beliefs or misunderstanding of law or unawareness of law. The law’s implementation doesn’t take into account the fact that we have a shortage of certified providers and adequately equipped facilities. And this is particularly more so now when the gestational limit has been increased and later gestational terminations are more complex and require greater skills, better facilities. The law actually does not require providers to ask for consent, but to be on the safe side, providers ask for husband’s consent, parental involvement, particularly in case of adolescents and unmarried women. There is persistent stigma and criminalisation fear. As long as abortion remains linked to a criminal law, it is socially stigmatized. And many women delay care or seek unsafe pathways in such situations.

Is there a case to be made for the Supreme Court’s asking for the removal of the time limit on terminations of unwanted pregnancies in the case of minor rape victims?

Dipika Jain: The MTP Act sets out general outer limits of 24 weeks, with only two exceptions. One is substantial foetal anomalies, which has to be certified by a medical board, and the other is to save the life of the pregnant woman. In the past, the Supreme Court has, on multiple occasions, allowed termination up to 33 weeks of pregnancy in cases of foetal anomalies. [This] exposes a gap between legal categories that are rigid and real life, medical and social situations. So if it is safe, and it is with the consent of the pregnant person, and the termination is allowed in cases of foetal anomalies, why can’t terminations be allowed in other cases where late-term termination becomes important? For example, sexual assault, rape, drastic life challenges, mental health crises. Why do we have legal and medical gatekeeping? In my opinion, not only survivors of sexual assault, but also anyone whose pregnancy is safe to terminate should be allowed to terminate the pregnancy. 

Alka Barua: The law has not taken into account ground-level reality. There is no need for such rigid gestational limits for terminations, particularly in cases of sexual assault survivors, minors, or adolescents, etc. One reason is, they tend to come late: because of the trauma, the stigma, the lack of awareness about their entitlements under the MTP Act; in case of minors and adolescents, they often do not even know that they have conceived till late pregnancy. Then, most do not have access to resources; they have restricted mobility. Delayed access is not out of choice but because institutions, family structures, violence prevent them from timely access. And therefore, this kind of time limit actually perpetuates the violence which they are subjected to. We believe that risk should be assessed clinically. Does the service provider believe that termination can be provided? If it can be safely provided based on clinical judgment, then why this inflexible statutory cut-off? The intent of the law has to be interpreted more broadly rather than using it as a barrier to provide services.

Do healthcare providers feel they may be at risk of criminal proceedings if they proceed with abortions?

Dipika Jain: Abortion is criminalised under criminal law. But there is also an exception, which if followed, on the basis of certain conditions, termination can be offered. However, because it is conditional and the burden of proof is on the doctor, not on the pregnant person, complications arise. This is not a rights-based framework. It is a conditional, qualified framework and sets out very strict conditions. If you fail in any of these conditions and if you do not meet the criteria set out in the law, then yes, there can be chances of prosecution. We know that in 2021, a doctor in Meghalaya was put behind bars for a month on a termination he didn’t even do. So that is the kind of fear of criminalisation that exists, or fear of prosecution. There are also other laws that complicate the criminal framework and liability, for example, the PCPNDT [and] POCSO. Criminalization is a problem for a healthcare framework. Why can’t we move from a criminal framework to a rights-based reproductive justice healthcare framework?

Alka Barua: The reason for this is not only lack of awareness about what their obligations are, what the service seekers’ entitlements are, but also lack of awareness among those who are enforcing the law at the ground level. Most service providers are worried about police involvement in cases of rape and minors. They are confused about documentation requirements. Then there are concerns about the uncertainty around pregnancies near the stipulated gestational limits. There are no clear protocols in place. All this, in addition to the fact that there is a social pressure, let’s not forget that doctors belong to the same society as [that of] service-seekers. All this leads to a chilling effect. They don’t want to provide services in such cases, particularly the later gestation cases.

Are there other countries that allow for abortion on a demand basis rather than on a conditional basis? Is that what a reproductive health rights framework looks like?

Dipika Jain: The Supreme Court in 2022 has said that it recognises reproductive decisional autonomy as a fundamental right. It means that the decision to terminate a pregnancy ultimately belongs to the pregnant person, not the doctor or the State. That’s what the law is saying. Now, should that not also be the practice? If a pregnant person decides to terminate, why should the State impose so many conditions? Why can’t it be based on decisional autonomy and on demand? There are many countries that have at least early-term abortion on demand or on request, and that’s exactly how our law should be.

Alka Barua: Irrespective of what the law is, our experience is [that] when a woman decides to terminate a pregnancy, she does get it terminated. If restrictions are there, you are literally pushing the woman or the person seeking termination towards unsafe places or unsafe service providers. The MTP Act came into existence for preventing unsafe abortions and maternal deaths because of that. And if that very law, because of the conditions it has included in it, is leading service seekers towards unsafe practices, then the point is lost. I [also] just wanted to distinguish between refusal on any grounds, be it ethical or professional, skill level, and denial of access. An individual service provider may decline to perform a procedure to which they have objections personally. The law says nothing against it right now. But then they should be made to refer the case, or ask someone else in the facility to provide the services.

Would a law that lifts all conditions and allows for abortion on request be in conflict with the POCSO law where the State has to look into sexual assault?

Dipika Jain: When the POCSO law was drafted, the focus was on child sexual abuse. Section 19 of the POCSO Act allows for mandatory reporting. What happens when it interacts with the MTP Act? In the MTP Act, when an adolescent or minor gets pregnant, they can seek termination. But when the adolescent walks into the hospital, the doctor has to report her mandatorily to the police. Now, what happens is, in case of a 16-year-old in a relationship with a 17-year-old boy, this 16-year-old girl will not go ahead and seek termination because she knows that the mandatory reporting will mean that the boy will be held for statutory rape. This is the problem. In 2022, the Supreme Court harmonised POCSO with the MTP Act. The court ruled that minors can access abortion services without their identities being disclosed. So to some extent, this has been addressed. However, it’s not something that is working on the ground.

Alka Barua: What happens is, they [minors] come fairly late, often, beyond the statutory limit. So they [end up] in such cases filing a petition. All that complicates the case further, because instead of it being confidential information, they have to go through legal labyrinthine to get services. The second thing is service providers themselves are very wary of providing services in these cases because the court may give the ruling, but this has not translated [into ground-level action]. The protocols have not kept in pace with the court rulings. They look for a directive from the Ministry of Health and Family Welfare. As long as such written directives are not there, the protocols are not there, there would be some chilling effect on provision of services to minors. And mandatory reporting is still there, except that the identifiers are not there. So the person cannot be identified, but it is reported. Now, in a public sector service facility, it becomes very public. This kind of law creates more problems rather than easing access for legitimate services.

There have been differing judgments by the SC itself when it comes to abortion. Has there been confusion in the courts also?

Dipika Jain: This is a classic case of legal indeterminacy, where different courts may appear to assign different moral and legal weight to different grounds, such as foetal anomaly, rape, social circumstances. This creates variability in outcomes, especially in post-24 week cases. There is this understanding of the ‘good’ abortion and the ‘bad’. So in cases involving severe foetal anomalies or sexual assault, courts are often more than willing to permit termination, as these situations are seen as strongly implicating medical necessity, trauma, and decisional autonomy, which can be categorised as ‘good’ abortion. But in contrast, for example, [in] married women with children, courts may apply stricter scrutiny. And this is the ‘bad’ abortion. There are more than 1,000 cases in the court in the last decade or so, and those are women who can afford lawyers and go to the court. And in a country like ours many cannot afford lawyers and have not gone to court. So what is happening with them? At the end of the day, the pregnant person is the one who suffers. If a pregnancy can be terminated by a doctor medically and safely, that should be allowed and that should be the norm.

Alka Barua: If a service provider is allowed a lot of major surgeries without necessarily referring to a medical board or a group of clinicians, why is it so necessary in case of 24 weeks plus gestation? That itself shows that your focus is not on the woman herself, but on the foetus. And that was not the intent of the MTP Act at all. Laws in India, as far as services are concerned, can only lead to a limited change in what happens at the ground level. What we need to understand is, what are the social barriers? What are the lived realities of women? And if you look at that then anything that is criminalised is not likely to translate into access to services. So, there is a complete disconnect in the way the law is being interpreted randomly across rulings, as it is evident in various rulings, and what is the ground reality.

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