The news of rape survivors, especially children, being denied abortion has been in the public eye for some time. First it was a ten-year-old rape survivor, 28 weeks pregnant, and the second was a 13-year-old child, 26 weeks pregnant, both reaching medical institutions/doctors but being turned away by the medical system owing to the advanced stages of pregnancy. Both appealed to the Supreme Court to seek permission for abortion. The court did not allow an abortion for the ten-year-old child, compelling her to proceed with the pregnancy, while the 13-year-old child has been allowed to terminate the pregnancy.

There has been a spate of several such cases at the Supreme Court-level seeking directions to terminate pregnancies that are an outcome of rape. A number of questions have arisen based on such news: What are the reasons for delay in reaching the medical system? Why couldn’t the family bring these survivors earlier? It is important to consider that a child may not realise that she is being sexually abused and that such abuse can lead to pregnancy. The child might also think that she will not be believed or she may fear a threat to her life and to her loved ones. In many situations, pregnancy is detected only when the child complains of nausea, abdominal pain and/or when an abdominal bulge is visible.

Section 357 C of the Code of Criminal Procedure (CrPC) casts doctors with the duty of providing immediate treatment to survivors of rape. But on the ground, pregnancies due to rape are not addressed as a health concern. Doctors distance themselves from providing the required care if the pregnancy is beyond 20 weeks and advise the families to go to court. There is no doubt that these reported cases are just the tip of the iceberg and many more such cases remain unknown – their pleas may not even reach the courts due to social and economic barriers, and they may be compelled to continue unwanted pregnancies.

Such cases have been consistently heard in the Supreme Court and high courts, and the courts have routinely referred the matter to the medical boards. The court verdict itself is based on the opinion of the medical board. Despite several such cases reaching the court, its orders are restricted to specific case scenarios without dwelling on the need to remedy the situation on the ground. The only exception to this is in the case of the ten-year-old survivor, where the Supreme Court expressed concern over survivors having to come to courts seeking remedy in the form of termination of pregnancy. It recommended that medical boards be set up at the state level to make decisions on these matters so that the process is not delayed by sending survivors to the courts.

Role of the medical boards

Until now the medical boards were set up on the direction of the courts so that it could seek expert opinions on whether to or not to provide termination of pregnancy to survivors. However, medical boards restrict their role to the interpretation of law, namely the Medical Termination of Pregnancy (MTP) Act, instead of lending their expertise to assess physical and psychological trauma caused due to the pregnancy.

The MTP Act sets conditions under which a doctor can provide abortion services, and pregnancy as an outcome of rape is one of them. The gestational age limit for providing MTP has been set at 20 weeks as per Section 3 and Section 4 of the MTP Act.

Section 5 of Act, however, allows termination at any stage during pregnancy.

The provisions of Section 4 and so much of the provisions of sub-section (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

It is important to note that the MTP Act in itself does not ask for the opinion of any medical board for applying sections of the law, including Section 5, but empowers the treating doctor to take a decision in the best interest of the survivor. In fact, the opinions provided by medical boards in a number of cases in the past were well within the scope of the treating doctor and in keeping with their existing mandate of the MTP Act.

Further, none of the medical boards raised any concern about the denial of healthcare by the treating doctors under Section 5 of MTP Act. In fact, they did not even raise concerns about the mental trauma and anguish that survivors have to go through due to the delay in receiving services.

Silence when the medical board errs

The medical board set up in case of the ten-year old child suggested that terminating the pregnancy was dangerous to the child whereas somehow the continuation of pregnancy did not pose a risk. Why did the courts not seek substantiation from the medical board on why/how the continuation of pregnancy was safer for the ten-year-old survivor, who suffers from a congenital heart condition and whose pelvic bones were ill-developed compared to an adult woman? Despite being an expert body, the board did not comment on the psychological impact of a pregnancy on the child living the aftermath of rape. There is an overwhelming amount of evidence to indicate the negative impact rape has on the lives of survivors and it is safe to assume that it would be amplified in cases where a child is the survivor and pregnant as a result of the rape. It is prudent here to say that the board may have erred.

No medical association came forward to either issue a statement or engage with the medical board to enable immediate treatment and care for the ten-year-old. Except for two statements by the Common Health Campaign and the Pratigya Campaign for Gender Equality and Safe Abortion, endorsed by civil society groups and women’s health advocates, and a few practicing doctors who issued medical opinions suggesting the dangers of continuing pregnancy, the rest of the medical fraternity in India remained silent. This attitude is definitely a cause for serious concern.

Denying an abortion is an offence

The recent amendments to the rape laws – Section 357C CrPC and Rule 5 of the Protection of Children from Sexual Offences Act – make it mandatory for all public and private hospitals to provide immediate treatment to rape survivors. Abortion, therefore, is an essential element of this immediate treatment. However, law enforcement authorities have not questioned the denial of such treatment by first-contact doctors. The continuation of pregnancy prolongs the trauma of a rape survivor and also impedes her path to recovery. To ask a rape survivor to continue with a pregnancy and suggest giving the child up for adoption is inflicting grave injury to the survivor’s physical and mental health. Not treating a rape survivor is punishable under Section 166B of the Indian Penal Code. However, as per the MTP Act, there is no offence if a doctor denies an abortion. Doctors can be punished if they carry out an abortion if they are not registered medical practitioners or if they carry it out in a facility not approved as per the MTP Act. The question, therefore, is, what is the ethical and legal responsibility of doctors?

There is an urgent need to create more awareness about the right to healthcare for rape survivors. This requires doctors to build a strong opinion on access to safe abortions and work with the health ministry to issue directives in order to operationalise the right to treatment and to prevent the denial of such care to survivors of sexual violence.

Padma D. is an independent researcher and former coordinator of the Centre for Enquiry into Health and Allied Themes (CEHAT). Sangeeta Rege is Coordinator, CEHAT.