On September 23, the Odisha high court — responding to a writ petition concerning the medical termination of pregnancy — refused a physically disabled and mentally challenged rape victim’s request to abort her 24-week-old foetus. The high court relied on the Medical Termination of Pregnancy Act 1971 and the Medical Termination of Pregnancy Rules 2003, plus the advice of doctors, to deny permission. Though the court did grant monetary compensation to support the child’s upbringing, and made the state responsible for the child’s education, was the decision ethical?
Given the woman’s right to privacy, dignity and bodily rights, the case of mental illness, the trauma of rape giving rise to the pregnancy, the state’s interest in preserving life and the law of the land, finding which way the ethical compass here isn’t easy.
The pregnant woman’s mother filed a police complaint on August 13. A medical examination showed the woman was 16 weeks pregnant. Her family subsequently approached the high court on September 4 seeking permission to terminate the pregnancy. A second medical examination found the woman had been pregnant for 24 weeks by then, and the court pronounced its verdict.
If the high court banked largely on the medical reports submitted, there may be a case of negligence there. The judgement mentions that the medical report submitted on August 13 said the pregnancy was 16 weeks old, only for it to increase by eight weeks when the second exam was performed less than a month later! So one of these two reports was wrong. Together with the fact that time was of the essence, the family’s ability to make a quick and reasonably informed decision was compromised.
A psychiatric evaluation established that the woman was not capable of taking care of the child. However, the court states in its decision that it relied on a maternal grandmother’s assurance that she would attend to the child’s needs – the same grandmother who had appealed for the termination in the first place. This is unusual, and in any case by overlooking the results of the evaluation, the judgment also sidelines its mental health repercussions.
There are broadly three grounds – as a health measure, on humanitarian grounds and eugenic grounds, on which the 1971 Act permits termination of pregnancy. The MTP Act clearly states in Section 3 that when pregnancy is due to a result of rape or failure of birth control, they cause “grave injury to the mental health” of the woman. In this case, where the victim already suffers from severe mental health issues, carrying the pregnancy forward could worsen her condition.
There have been many issues with the MTP Act, and an amendment to it in the form of ‘The Medical Termination of Pregnancy (Amendment) Bill 2020’ was introduced in the parliament on March 2, 2020, and passed by the lower house on March 17. The Bill notably raises the time period in which abortion may be carried out, from 20 to 24 weeks.
This change is brought about in the Bill after it was observed that High Courts and Supreme Court have always been flooded with writ petitions for termination beyond the 20-week period largely due to foetal abnormalities or the women being vulnerable. The apex court has in the past banked on medical boards to give judgements and have permitted the abortion of a 32-week foetus of a rape victim as well as denied a similarly aged foetus in another case.
The Orissa high court should arguably have taken this fact into consideration that an amended Bill has been passed and will soon be the law. This way, it could have considered 24 weeks as an upper limit, especially with the backdrop that with advance in science, it is well within a safe period of abortion. The high court has done well to seek for psychiatric opinion in the medical board but when the same has stated that the woman is completely dependent and not in a position to take care of the child; the court has not addressed the concern.
However, the silver lining of the judgement is the court identifying a lack of coordination among police, medical authorities, POCSO authorities, district legal service authorities and magistrates dealing with such disputes and issuing a 14-point guideline to deal with such cases. It is imperative that a clear policy and protocol be established and these agencies made aware of them. Not only that, unless the negligence of authorities is punished, the state apparatus will have little incentive to bring about a change.
Abortion has always been a contentious issue. The state’s “compelling interest” to protect life and the woman’s “personal liberty” often clash. While in India abortion issue has not garnered a spot of importance like it does in the US, the intertwining of cultural practices, stifled women rights, unsafe abortion practices, lack of medical care for the vulnerable, religious beliefs, all make for a heady cocktail. The newly amended MTP Act is a welcome step. For cases like the one heard by the Orissa high court, it may add to yet another of those difficult cases, which students of law would study and which stirs a momentary debate in the society.
Sambit Dash teaches in Melaka Manipal Medical College, Manipal Academy of Higher Education (MAHE), Manipal. He comments on public policy, healthcare, science and issues of social interest. He tweets at @sambit_dash.