‘Minor’s consent not enough for abortion’: Delhi High Court keeps doctor on trial

“The MTP Act does not regard a minor as capable of independently consenting to termination, but the statute itself declares it insufficient. In the present case, no guardian consent was ever sought… The signature of a minor does not supply the consent the MTP Act mandates,” the August 5 order said.

The order added, “the issue here is not whether doctors, as a class, must be treated with suspicion whenever a patient’s age later turns out to have been misstated. It is a narrower and more exacting question, i.e., at what point does a doctor’s silence about a patient’s age stop being an innocent consequence of having been misled, and become a punishable failure to report an offence she knew, or had been told, had occurred.” 

Justice Purushaindra Kumar Kaurav heard a matter involving a minor’s illegal abortion.

Minor’s abortion and MTP Act violation

The case arose from an alleged illegal termination of pregnancy of a minor girl and the doctor’s alleged failure to comply with the safeguards under the Medical Termination of Pregnancy (MTP) Act and reporting requirements under the POCSO Act.

In the present case, the survivor alleged that she was sexually assaulted and became pregnant. On July 26, 2019, she was taken to a medical centre, where she got to know she was six weeks pregnant, and was later referred to another medical centre, where the petitioner doctor performed the termination.

The survivor initially did not accuse the doctor and stated that her age had wrongly been recorded as 20 years, though she was 16, but later she filed a protest plea accusing the doctor, alleging that the termination was carried out by forging her signatures on medical centre papers in a conspiracy.

According to facts of the case, during the interrogation, the doctor stated that no age proof or identity proof of the survivor was obtained and the mandatory Form I under the MTP Rules was not completed. Based on this, a supplementary chargesheet was filed by the police against the doctor for alleged violations of the MTP Act, IPC provisions and failure to report under the POCSO Act.

Advocates Faraz Maqbool, A Sahitya and Deepshikha appearing for the doctor argued that the case against her was wrongly initiated and that there was no evidence to show she knew that the survivor was a minor at the time of termination. It was also contended that the survivor did accuse her initially, and represented her age as 20 before the hospital.

It was submitted that the petitioner had no knowledge of the survivor’s minority and was expressly told, at both the medical centres, that she was twenty years old. 

The prosecution submitted that the consent considered by the MTP Act, for a minor, is that of the guardian alone, and that the survivor’s physical presence and cooperation cannot substitute for that statutory consent. 

‘Doctor’s case to continue’

The court observed that the MTP Act was not enacted to create an unqualified license to terminate pregnancy on demand. It emphasised that it was enacted to carve out the circumstances in which what would otherwise be an offence causing miscarriage and injuries to unborn children ceases to be punishable, provided the termination is performed strictly in the manner the Act contemplates. 

The court held that the MTP Act does not regard a minor as capable of independently consenting to termination, but the statute itself declares it insufficient. In the present case, no guardian consent was ever sought because no one at the medical centre turned their mind to whether one was required. It said that the signature of a minor does not supply the consent the MTP Act mandates and held that the trial should be proceeded uninfluenced by any observation made herein, and should decide the matter strictly in accordance with law, based on the evidence led before it.