Biased, No Clarity: Experts Worried as Kerala HC Rejects Abortion to 12-Year-Old

Denying permission to terminate pregnancy in a minor on the grounds of foetal viability is concerning, say experts.

Kerala HC Declines Plea To Terminate Pregnancy Of 12-Yr-Old

(Illustration: Vibhushita Singh/FIT)

The Kerala High Court on 22 December refused permission to medically terminate the pregnancy of a 12-year-old minor girl that resulted from an 'incestual relationship' with her brother, also a minor, according to the petitioners.

In the verdict widely reported on 2 January, the court held that since the foetus has already reached 34 weeks of gestation and is "fully developed," "termination of pregnancy at this point is not tenable, if not impossible."

The shock value of the headlines aside, a closer look at the judgment throws up several question marks that have experts concerned about the wellbeing of minors who seek safe abortion under the current abortion law and the way it is implemented.

The Case and Its Unanswered Questions

First, a quick rundown of what happened.

The parents of the minor girl sought permission to terminate the pregnancy because carrying the pregnancy to term could cause physiological and psychological trauma to her. The court also said that the parents did not know about the pregnancy till recently, which is why they couldn't do anything about it any sooner.

SOme crucial questions remain unadressed in the judgement:

• How old was the brother?

• What is the nature of their relationship?

• Was it consensual?

• Was it sibling abuse?

Speaking to FIT, Rohin Bhatt, a Bioethicist and lawyer practising at the Supreme Court, says, that while these are crucial questions, another, atypical factor stands out in this case.

A Medical Board set up under the mandate of the court had 20, December 2023, presented a report to the court that said that a medical examination was done, and that, "considering the tender age and psychological trauma, the medical board has opined for termination of pregnancy."

However, the court directed the board to review the recommendations saying the report was 'not very clear'.

A review by another medical board conducted on 21 December gave a unanimous opinion that the pregnancy could be carried to full term without "seriously affect(ing) the psychological well-being of the mother."

"Why is the Medical Board’s report being revisited? Even when the first report came, she was already 34 weeks pregnant, so why did their decision change?" says Bhatt.

Speaking to FIT, Dipika Jain, Professor of Law, Director of Centre for Justice, Law, and Society (CJLS), Jindal Global Law School, says that the problem here is that "the doctors (on the medical board) have been asked to decide if it's 'medically possible' to carry the pregnancy to full term," she says.

The review report also said, "It will also help in improving overall outcome of the baby."

"It gives the impression that the foetal viability is being given priority over the physical and psychological wellbeing of the minor girl," adds Bhatt.

"What you're saying is that you think forcing a 12-year-old to give birth is okay, when the medical opinion is saying that its okay to terminate."

Dipika Jain

Lack of Clarity, Bias, Moral Stands: The Implementation of the Law is Often Messy

"The group of people who have the most trouble accessing medical abortion in India is adolescents," says Jain.

Both Bhatt and Jain point out that this is linked to certain limitations in the Medical Termination of Pregnancy (MTP) Act and Protection of Children from Sexual Offences (POCSO) Act — the two laws that come into play in the case of termination of pregnancy in minors.

These two clauses in particular:

1. According to the MTP Act 2021, a minor can only access abortion with consent from an adult guardian.

2. As per the POCSO Act, any person with knowledge of a sexual relation involving a minor has to report it to the police.

Recently, this clause was read down to exclude medical practitioners. "Even then, this isn't being implemented. There is no government order in this," says Jain.

Furthermore, the MTP Act also says that beyond 24 weeks, termination of pregnancy will only be allowed subject to the permission of the medical board. "In cases like this, judicial authorisation itself is fundamentally flawed. It shouldn't be part of this entire framework," says Jain.

"Because there is no clarity and its left to the opinion of the court, its become inconsistant jurisprudence where some judges are allowing, others are not allowing because they feel like its not okay, and in some cases there is a clash between the opinion of the medical board and the judge."

Dipika Jain

For instance, in a similar case back in May, the Kerala High Court had granted permission to terminate the pregnancy in a 15-year-old girl on grounds of possible impact on her mental and social wellbeing, stating: "Considering the fact, the child is born from his own sibling, various social and medical complications are likely to arise."

'Exceptions May Become the Norm': Sign of a Worrying Shift in Judgments?

This judgment by the Kerala HC, especially when viewed along with other similar recent cases, sets a concerning precedent, say the experts we spoke to.

Bhatt cites the recent notable judgment by the Supreme Court passed on 16 October, 2023, that deferred the medical termination of a 26-week pregnancy of a married woman who had been granted permission to abort by another bench.

"Then too the reasoning that was given was that the foetus is viable, with a favourable chance of survival, and so the pregnancy should be carried to term," they say, adding, "This was the first time something like this has happened."

"They keep implying that carrying the pregnancy to 'full term' is the better option to aim for. But it's better for whom?" says Jain.

"Feotal anomaly is one of the two reasons why it is allowed. But if its safe to terminate a feotus with an anomaly, then why is it not considered safe otherwise?" she asks.

She adds:

"One of ther repercussions (of such judgments) that could arise is that 24-week mark will slowly become the hard limit beyond which permission to terminate the pregnancy will not be granted, except in the case of feotal anomaly and risk to the life of the petioner."

What About The Health of the Minor Girl?

Beyond social stigma, taboo, and psychological trauma, there's also the physical trauma. Speaking to FIT, gynaecologists say that there are also physiological reasons why pregnancy is discouraged in very young girls.

"A child is not psychologically and physiologically prepared to undergo a pregnancy at that stage," says Dr Priyanka Suhag, Consultant, Obstetrics & Gynaecology at the CK Birla Hospital, Delhi.

The fact that, in this case, the medical board recommends caesarean delivery stating, "normal delivery may be untenable on account of the young age of the mother," is also a testament to this.

Speaking to FIT previously, Dr Nozer Sheriar, who has worked on India’s Medical Termination of Pregnancy Act of 1971, said that a vital step is improving our abortion laws and reducing the number of unsafe abortions. "Someone under the age of 15 was five times more likely to die of pregnancy than someone over the age of 20.”

"A person under the age of 20 was twice as likely to die of pregnancy as someone over the age of 20."

Dr Nozer Sheriar

Dr Suhag reiterates this now, explaining:

"At this age, a young adolescent body is also not ready to carry a pregnancy, the delivery and postpartum care."

"The have a higher risk of anaemia. Moreover, the delivery process itself takes a toll. There is a risk of postpartum haemorrhages and blood loss that is a leading cause for maternal mortality."

Dr Priyanka Suhag

Dr Sheriar also pointed out that a lack of autonomy, and access to proper medical attention also puts them at risk.

Underscoring this point, Jain says, "There needs to be major criminal reform where all of these positions are settled."

"If its safe for the pregnancy to be terminated, it should be allowed, rather than looking at if it's safe to carry the pregnancy to be carried to term. Otherwise, more people will avoid going the medical route and opt for unsafe back-alley services."

Deepika Jain