Bombay HC Approves Minor Rape Survivor’s Abortion Plea

The 14-year-old was diagnosed with cancer in 2010 and had gone for chemotherapy when the pregnancy was detected.

Currently, the law allows medical abortion till 20 weeks of pregnancy. Image used for representation. 

(Photo: iStockphoto)

A 14-old-rape survivor approached the Bombay High Court with a plea for allowing an abortion after it was found that she was nearly six months pregnant on 5 September. After looking at a medical report filed by JJ Hospital, the Court has, on 14 September, given the go-ahead to the girl to abort her pregnancy, owing to the harm it will cause to her mental and physical health going forward.

The minor girl was diagnosed with blood cancer in 2010 and was undergoing a routine chemotherapy session at Wadia Hospital in Parel when the 24-week pregnancy was detected. It was only then that she revealed that she had been raped twice by a close school friend who often came to her home to study, earlier this year.

Around three months ago, the minor girl had told her mother that she had missed her period but her mother dismissed it, attributing it to her health issues and ongoing chemotherapy.

What Happened So Far?

On 6 September, the minor’s mother filed an FIR under IPC Section 376 (Rape) and under Protection of Children from Sexual Offences Act (POCSO) against the accused, also a 15-year-old. The police, per protocol, took the survivor to KEM Hospital where the doctors confirmed the pregnancy.

In her plea to the High Court, the survivor has submitted that KEM doctors assessed that “continuation of the pregnancy would cause serious threat to her life as well as to the life of the foetus.”

The girl’s parents then approached NGO Majlis for help, since the survivor was past the legal limit for permissible abortions, which is up 20 weeks of pregnancy under the Medical Termination of Pregnancy Act (MTP Act). The NGO put them in touch with advocate Kuldeep Nikam who then filed a plea in front of the court on 12 September to make an exemption and allow the abortion.

Speaking to The Quint, Nikam explained the law in such cases:

Section 3 of the MTP act allows the termination of unwanted pregnancies up to 12 weeks with the consultation of only one doctor. Between 12-20 weeks, the abortion requires the approval of two doctors if they think that either the physical or mental health of the woman will be affected by carrying the pregnancy to term, or the child will be born with serious abnormalities.

Explaining further, he said that in the explanation of Section 3 of the MTP Act, the law specifies that in case of rape survivors, the ‘harm’ is considered to be harm to mental health. But beyond 20 weeks of gestation, such as this case, abortions are prohibited. Under Section 5 of the MTP Act, one necessarily needs to seek an exemption from the court which assesses if there is ‘immediate danger’ to the health of the mother or not.

When asked whether “immediate harm” to the woman seeking an abortion after 20 weeks of gestation includes harm to mental health as well in the law, Nigam said:

“As lawyers, we argue that harm to life includes harm to mental health, since Article 21 of the Constitution which is Right to Life includes Right to Dignity. So, Section 5 of the MTP Act must be read along with Article 21.”

Justice AS Oka and Justice MS Sonak, who heard the plea, directed JJ Hospital to immediately constitute a panel consisting of gynaecologists, a psychiatrist and other experts to assess the risk factors involved in both continuing the pregnancy and terminating it. The minor girl appeared before the panel on 13 September. Based on that, the panel filed a report to the court on 14 September.

On the basis of that, the court has allowed the girl to terminate her pregnancy, judging that keeping the baby will be more harmful to her in the long run than aborting it at this stage.

Such exceptions to the MTP Act have been granted by the courts in the past also. Cases of note include Bombay HC allowing a Pune-based 13-year-old rape survivor to abort her 26-week pregnancy in May 2018 and the Supreme Court allowing a Bangalore-based 17-year-old rape survivor to terminate her 24-week pregnancy.