Abortion for Survivors of Sexual Assault: What Are the Delhi HC Guidelines?

The Medical Termination of Pregnancy Act is now to be read with the guidelines issued by the Delhi High Court.

(Photo: The Quint)

On 9 August, the Delhi High Court added two important guidelines for officers, doctors, and other authorities in cases of medical termination of pregnancy of sexual assault survivors. The court said:

• The medical termination of the pregnancy is to be carried out with "utmost caution" by the medical professional involved.

• The investigating officer must ensure that the survivor is taken to the hospital within 24 hours of receiving an order for the medical termination of the pregnancy and ensure that the foetus is preserved (whenever such an order is issued).

The HC issued these guidelines after a 14-year-old survivor of sexual assault and her mother moved court this year, seeking termination of the pregnancy of the minor. She was over 24 weeks pregnant in January.

However, in August, during the bail hearing of the accused in the case, the court found that despite an order, the termination of the pregnancy of the survivor was not done medically, leading to a loss of crucial evidence.

What are the guidelines when survivors of sexual assault choose to terminate their pregnancy? The Quint explains.

MTP (Amendment) Act, 2021: What Are the Provisions for Survivors of Sexual Assault?

The Medical Termination of Pregnancy (Amendment) Act, 2021 prescribes the rules and regulations for those seeking abortion. Under the Act, a woman is given the provision to terminate her pregnancy up to 24 weeks of gestation, with their due consent or that of her guardian in case she is a minor. 

Among other reasons under Section 3 of the Act, there is a provision for the termination of pregnancy by a registered medical practitioner for survivors of sexual assault.

"Wherever the timeline is exceeded which is beyond 24 weeks and there is a minor or adult survivor of sexual assault, they will have to approach the high court seeking permission for the termination," Aishwarya Sinha, a senior social worker at iProbono, told The Quint.

The Act is now to be read with the guidelines issued by the court.

Delhi HC MTP Guidelines to Survivors of Sexual Assault: What Do They Say?

The Delhi HC has issued a comprehensive set of guidelines in two separate judgments announced in January and August 2023, respectively.

Pregnancy Test: The HC has recommended a mandatory urine pregnancy test of the survivor at the time of the medical examination. This step becomes especially important for minors. 

"Many children do not realise they have become pregnant. It only happens when they think they have been missing their periods for a long time and they see that this is a matter of concern. It is only on visiting the doctor that the pregnancy is discovered. That is how a lot of cases of sexual assault are reported with minors."

Aishwarya Sinha, Senior Social Worker at iProbono

Consent: The HC has also emphasisd the importance of consent and desire to terminate the pregnancy. In the case of minors, it is important to take the consent of both the survivor as well as the guardian.

Once the consent has been attained, the survivor must be presented before the medical board on the same day, the court has said.

Time Cap: The court has expressed this by directing the authorities that if an order is being sought for termination – especially in the case of the minor – the report has to be presented before the authority concerned to fast-track the process and not lose out on time.

Post this order, the survivor has to be taken to the hospital concerned within 24 hours. This applies irrespective of the gestation period.

Constitution of Medical Boards: The HC has asserted the need for the establishment of medical boards in government hospitals in all districts.

Currently, there are only four hospitals in Delhi where the medical board has been constituted in accordance with the MTP Act – namely, AIIMS, Dr Ram Manohar Lohia Hospital, Safdarjung Hospital, and Lok Nayak Jai Prakash Narayan Hospital.

The court has given the responsibility of the same to the state government/Union Territory.

Preservation of Foetus: It is the responsibility of the doctor in-charge to ensure the preservation of the foetus and to ensure that the patient is not released in a hurry.

"After the termination is done the investigating officers have to collect the fetus, and then send the sample to the forensics laboratories to be matched with the DNA of the alleged accused person. It is a part of the medical evidence and strengthens the case," explained Aishwarya.

"The DNA sample is only handed over to the investigating officer (IO)," added Shivangi Goenka, Lead Social Worker, Survivor Support Team, Counsel to Secure Justice.

Detailed Records by Doctors: The responsibility of the discharge sheet and post-procedure care have been given to the doctor in-charge. They must ensure it contains all the details. In case the survivor has been discharged without termination of pregnancy, the reason for the same has to be mentioned.

Medico-Legal Case Report: Along with this, the Delhi High Court has directed the doctors to ensure that with the original discharge sheet, a typed copy of the same has to be provided to the investigating officer within a week. 

MTP Act and Child Welfare Committee: How Are Minors Being Addressed?

While the MTP Act has provisions for minors, there is also a Child Welfare Committee (CWC), constituted under the Juvenile Justice Act 2015, which helps minors with such procedures.

"It has become a customary practice in Delhi that the CWC writes an order requesting the IO to take care of the documentation as required, and also direct the hospitals, to take up the case; and make sure the procedures are done," says Shivangi.

The CWC only writes orders for MTP in cases where the gestation period is within the prescribed norms.

"When the child is pregnant because of abuse, the CWC issues guidelines to the concerned hospital to facilitate the procedure at the earliest. This has been helpful so far. With the order, the children get treatment on priority, especially in government hospitals which are typically busy," shares Aishwarya.

The court recommends that while dealing with cases with minors, the doctors must reflect the highest standards of medical ethics, professionalism, and compassion and prioritise the well-being of the survivor.

It has also stressed the importance of post-procedure care and follow-ups in the case of minors to ensure that they are recovering emotionally and physically.

MTP Act & Guidelines: Are They Enough?

Having worked with over 250 minors closely, who have been survivors of sexual assault, Aishwarya says she has found the provisions to be effective.

"These guidelines, in my experience (with regard to Delhi), are effective and they have been followed. The practices are in place. And with CWC and bodies like these, there is a better system in place, because a child survivor of sexual assault can get help."

Aishwarya Sinha, Senior Social Worker at iProbono

"Even after the termination procedure, the children continue to receive support from the CWC, or even the courts. There is a provision of interim compensation for children under the POCSO Act," says Aishwarya.

"We have seen in the cases where children get pregnant because of abuse, the courts are very prompt in granting the compensation which is required for the medical treatment," she further added.