A 10-year old rape victim should not be at the mercy of the court. And the court should not be fettered by the law in allowing abortion of a pregnancy caused by sexual assault. But such are the complications of India’s Medical Termination of Pregnancy (MTP) Act, 1971, that the Supreme Court, on Monday, was constrained to seek the opinion of a panel of doctors to “affirm” if the health of a 10-year old, in Chandigarh, will be “adversely affected if her pregnancy is allowed to be full term”. The MTP Act allows abortions of more than 20-week pregnancies only when “it is immediately necessary to save the life of the pregnant woman”. It also requires the judiciary’s sanction for such abortions.
On more than one occasion, the court has rejected abortion petitions on the ground that its hands are tied by the MTP Act. In January, it did allow a rape victim to abort a 24-week old foetus that had severe abnormalities, but only after a panel of doctors ruled that the pregnancy could put her life in danger. A month later, the same court cited the constraints imposed by the MTP Act while refusing permission to a woman to abort her 26-week old foetus that would be born with Down’s Syndrome. There is near unanimity among medico-legal experts that the MTP act has failed to keep up with changes in science. They argue that foetal abnormalities show up after 18 weeks and a two-week window after that is too small for the parents to take the difficult call on keeping their baby. The growing number of sexual crimes against women and the need to empower them with sexual rights have also made it imperative that the MTP Act be changed.
Changes to the 46-year old law were, in fact, drafted in 2014. They do away with the need for the court’s sanction for aborting a more than 20-week old pregnancy and vest that decision on the healthcare provider if the pregnancy involves substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been caused by rape”. Significantly, the draft recognises that “rape may be presumed to constitute a grave injury to the mental health of the pregnant woman, and that such an injury could be a ground for allowing abortion”. It has been three years since these these progressive changes to the MTP Act were drafted. Will the case of the 10-year old girl in Chandigarh push the government into taking the next step?