On July 28, 2017, the Supreme Court of India disallowed the abortion of a 32-week-old foetus carried by a 10-year-old rape survivor. The child had been repeatedly raped by her maternal uncle over several months. Her parents remained unaware of the crime until she was found to be pregnant beyond 20 weeks.

The 1971 Medical Termination of Pregnancy (MTP) Act allows abortions only up to 20 weeks in cases where “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”. Since the law requires court approval for aborting a foetus that’s more than 20 weeks old, the girl’s impoverished family in Chandigarh approached the district court. Their request was turned down first by the said court and then by the Chandigarh high court.

The foetus was 26 weeks old, when the case went to the Supreme Court and the medical board appointed to look into the matter took another month to give its report. SC advocate Alakh Alok Srivastava had filed a public interest petition seeking an abortion on the grounds that doctors had found the girl’s pelvic bones were not fully developed, putting the life of both mother and baby at “very serious risk”. But in week 32, the SC said ‘no’, forcing her to give birth through a C-section.

Two years on, even as the fate of the young child and her child remains unknown, the question remains: How far have our abortion laws progressed? Do we have a better redressal mechanism for many similar cases knocking on the doors of courts today?

“At some stage of pregnancy, the baby has earned the right to live,” Dr Vanita Suri, the then head of obstetrics and gynaecology at Chandigarh’s Post Graduate Institute of Medical Education and Research, had told The New York Times in 2017. Not many agreed. “It is indeed cruel to force the girl to bring the foetus to maturity as she alone will bear the physical and mental trauma of pregnancy and childbirth,” Dr Subha Sri B, chairperson of CommonHealth, a national-level coalition for maternal and neonatal health and safe abortion, wrote in a news website, echoing the consternation felt by members of the civil society, medical fraternity and the media.

Forced into hiding

A study by the New York-based Guttmacher Institute, published in health journal Lancet in 2017, showed a whopping 15.6 million abortions took place in 2015 based on six of India’s most populous states (government data had pegged it at 700,000 for the same period, based on figures from its health centres). And only 14 per cent of these were performed surgically in registered medical facilities. The rest typically involved unsafe methods such as over-the-counter drugs, home remedies and inserting sharp foreign objects into the cervix. According to the ministry of health and family welfare, unsafe abortions are the third leading cause of maternal mortality causing eight per cent of all maternal deaths in India each year.

Access to abortion rights and services is beset by several hurdles. The first is the lack of awareness. In February 2018, a parliamentary panel noted that 80 per cent of Indian women think abortion is illegal, leading to a dependence on illegal means to terminate unwanted pregnancies. In an attempt to curb the trend the panel recommended permitting abortions until 24 weeks of pregnancy.

Then there is the added stigma. “During a recent survey, 56 per cent of the respondents said they would stop being friends with a woman if she had an abortion,” says Dr Vinoj Manning, CEO of IPAS Development Foundation, an organisation working since 2002 to help more women access safe and legal abortion procedures in 14 states. “There is an unmet need for safe abortions in facilities,” says Manning, who is based in New Delhi.

But even when a woman approaches a medical facility in time, she can never be certain of finding a willing service provider. The problem inadvertently arises from the law enacted in 1994 to curb sex-selective abortion, namely the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act. There were nearly 13 million sex-selective abortions during 2000-14, or 2,332 a day, according to the Population Research Institute.

A crackdown on clinics that perform sex-selective abortions or female foeticide has ended up tarnishing the image of all abortion service centres, and instilled a fear of police raids and media stings, says VS Chandrashekhar, CEO of Foundation for Reproductive Health Services (FRHS) India, which works extensively in Rajasthan, Bihar and Uttar Pradesh to increase awareness on sexual and reproductive rights. “The service providers don’t want to take a risk anymore,” he says .

Under existing law, beyond the 12-week mark, terminating a pregnancy requires the approval of two healthcare providers. It is after 12 weeks, or in the second trimester, that an ultrasound can determine the gender of the foetus, raising the risk of a sex-selective abortion. But this is also the stage at which foetal abnormalities can be detected and families may have a valid medical reason to opt for an abortion. And, poignantly, it is also the stage at which pregnancy may be detected for the first time in a child who has been raped, as happened with the case in Chandigarh.

Only a tenth of all abortion cases stem from sex selection while the rest merely involve exercising one’s sexual reproductive rights, says Manning. “You can’t deny services to a whole majority just because a minority is misusing it,” he says.

Safety in anonymity

In the case of a minor, access to safe abortion is fraught with yet more obstacles. Under amendments to the Protection of Children from Sexual Offences (POCSO) Act, 2012, any case of pregnancy in a minor must be reported to the police before it can be terminated legally. “While the MTP Act has provision for anonymity, POCSO ensures that every case is reported to the police because sex with a minor is a criminal offence even if the act has been consensual. Often the girls will disappear after they are informed of this. We don’t know where minor girls are getting abortions. But we know that they are and it’s not happening in registered clinics,” says Anubha Rastogi, a lawyer practising in Mumbai.

Dr Sanjay Gupte, a Pune-based gynaecologist of 38 years’ experience, whose Gupte Hospital offers abortion services, stresses the need for anonymity. “The whole purpose of constituting the MTP Act to create the space for a safe abortion will be defeated by POCSO,” he says. He also rues the lack of sex education among children, recounting how sexually active minors fail to use contraceptives and recklessly use over-the-counter abortion pills.

In the latest POCSO amendment passed earlier this week in the Rajya Sabha, punishment for raping those below 18 years of age has grown harsher, permitting the courts to hand out death penalty in cases of “aggravated sexual assault”, where deemed fit.

Families of minors are wary of revealing identities whether in the case of a rape or consensual sex. “Doctors are refusing to touch these cases,” says Rastogi. It is these cases that eventually land up in courts. “The number [of such cases] has definitely increased,” says Supreme Court advocate Srivastava.

The verdicts, too, vary from case to case. After the 10-year-old from Chandigarh was turned away in July 2017, a 13-year-old rape survivor from Mumbai was allowed to terminate her pregnancy at 32 weeks in September that year, despite the court-appointed medical board reporting that both termination and carrying the baby to the full term — 36 weeks — would pose equal risks to the life of the girl. In July last year, a 20-year-old was not allowed to terminate her 25-week pregnancy, with the top court equating it to “murder” since the foetus was healthy and the mother’s physical health was unlikely to be affected. “Law, needless to say, cannot be construed in a manner incompatible with life,” the Delhi High Court said while approving another plea to abort a 25-week foetus with abnormalities. Much depends on the recommendation of the medical board appointed in each case.

In the end, it becomes a race against time, where each day lost can make or break a right to safe abortion, says Srivastava, on whose suggestion the SC recommended appointing medical boards at state and district levels to hasten the decision-making process for abortions, especially in the case of minors. “Once a police case is filed, a magistrate must be empowered to refer the case to a medical board. The board must come into action with immediate effect. However, this hasn’t worked as planned,” says a disappointed Srivastava.