By Devangana Mandal and Dhwani Parekh
The years 2015 and 2016 have been monumental for the issue of medical termination of post-20-week pregnancies resulting from rape. Particularly in the case of minors, there has been a flurry of such cases at the Supreme Court-level requesting directives in exceedingly complex issues, from a legal and medical standpoint. Abortion services were denied, in a recent case, to a 10-year-old rape survivor on her 28th week of pregnancy leading to media outrage and reinvigorated discourse on the 2013 proposal to amend the Medical Termination of Pregnancy Act, 1971(the “MTP Act”).
The legal ceiling on terminations stands at 20 weeks with conditions under which a doctor may perform such a procedure—inclusive of pregnancies that are an outcome of rape. However, Section 5 of the MTP Act provides for an abortion at any stage of pregnancy:
“By the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman”
So, the procedure is that the doctor must make an assessment before permitting the abortion even after the consent of the woman is taken. The consent is not given paramount importance. The doctor must take into account, the health of the foetus and the woman, if the pregnancy is deemed harmful to either of them, then abortion is permitted. However, in the case of unwanted pregnancy, the doctor will allow abortion if the pregnancy and birth will affect the mental health of the woman. In cases of rape, it is presumed that the woman’s mental health is affected.
Pregnancy of any minor can only come under the category of pregnancy by rape. This is because the consent of a person below the age of 18 years is not taken as consent at all, the woman who had consensual sexual intercourse is said to have been raped if she is a minor.
Abortion for minor rape survivors with over term pregnancies is couched in a complex web of legal and medical issues. The ‘immediate threat to life’ exception in the MTP Act takes a new dimension due to the sexual violence suffered and compounded by the grave physical, emotional and psychological anguish of carrying the foetus to term . Furthermore, the detection of pregnancy in children is difficult and may only take place due to the appearance of physical symptoms.
In spite of growing medical and legal pressure for amendments, the judicial system has traditionally strictly interpreted the law. However, significant judicial progress was achieved in the landmark case of Chandrakant v. State of Gujarat (“Chandrakant”). Relying on the opinion of the medical board, which deemed the pregnancy a “serious threat to life” and “psychologically devastating”, it established the survivors “best interest” test, requiring Courts to consider medical opinion and socio-economic circumstances in prioritizing the minor and her health. The case has taken great strides toward progressive abortion jurisprudence and recognising the continuance of such pregnancies as grave physical and mental trauma.
Although successive judgements  furthered abortion access for survivors using the test outlined in Chandrakant, a uniform standard is far from being achieved. R v. State of Haryana(“Haryama”) displays the myriad obstacles faced by a minor when enforcing her right to abort her 21-week pregnancy. Multiple medical exams and hearing before boards medical boards by of the Court forced the extension of pregnancy to 25 weeks after which her request was rejected. Due to the viability of the foetus, the High Court reasoned that the woman’s wishes must be balanced against the rights of the “potential child”. Furthermore, utilising stereotype-laden language, the judgement set a dangerous precedent by personifying the foetus and deemed “the rape and abortion are violations and infringement of the right to life”.
The judgement betrays an inherently flawed understanding of the Act and is a microcosm for abortion law in India, on a twofold level. The upper-limit of 20-weeks limit from when the pregnancy started occurs that has been imposed under the statute. After which the woman must go to court. In the case of pregnant children, the detection of pregnancy is difficult and may only take place due to the appearance of certain physical symptoms. The MTP Act fails to take into account such cases, as the 20-week limit may be passed expire by the time the symptoms are visible. Then the lengthy legal proceedings make it even more dangerous to go for abortion and the court then has no alternative except denying the abortion. The Courts have held that the time sensitive nature of abortions, the physical and mental trauma of the rape survivor, and the requirement agony of multiple court hearings imposed by the doctors and police, is cause serious detrimental to the mental and physical health of the woman. This shows a glaring defect of the police and other officials in dealing with rape victims, there should be a mandatory procedure for checking for pregnancy as soon as the rape is discovered.
Secondly, there is widespread ignorance and fear regarding the law in the medical community, where the doctors refuse to operate in fear of prosecution, despite. Although Section 5 permits providing medical practitioners to abort in good faith and Section 8 protects them from legal proceedings when they act in good faith.. Survivors are often compelled to approach courts and engage in lengthy and expensive legal battles. As admitted in the Haryana judgement, medical experts feared criminal prosecution at aborting an over-term pregnancy, forcing the constitution of a second panel, further delaying the case and pregnancy. Additionally, the reliance on medical boards is excessive as courts often remain bound by opinion and do not seek substantiation.
In the face of legal and policy uncertainty, the judiciary plays a critical role in interpreting and providing transparency. Regrettably, Indian courts have failed to provide a consistent interpretation of the Act or outline key provisions for medical experts. In the case of minor rape survivors, the foundational element of urgency is ignored. References to “rights of the unborn child” are common and decisions are often based on moral and religious literature. Anti-choice texts are frequently cited in complete ignorance of the Act. This large-scale misinterpretation by state authorities demonstrates a very flawed conception of abortion in India.
Further, the requirement of consent hinders the process. The Act does not require the consent of the Court in case of abortion of rape victims, however, the doctors, police and magistrates go for the court’s approval as a matter of routine. The judgments have condemned the delay caused by the doctors, magistrate and the police, while pursuing the consent of persons other than the guardian of the minor.
Certain progressive judgments in the High Courts have held that forcing victims of rape to give birth is a violation of the woman’s Article 21 rights. Recently, in 2016, the Bombay High Court had held the right to abortion to be a ‘basic civil right of women’ and held consent to be of paramount importance.
In Suchita Srivastava, the Supreme Court has also held the right to reproduction as a part of Article 21 under dignity, personal liberty and privacy and further held that this right of the woman outweighs the right of the foetus. In the case of abortion of minors, the Act clearly lays down the consent of the parent or guardian, rather than that of the woman, in the abortion process. This shift in consent was annulled by the Court in V Krishnan vs. G Rajan Alias, where the minor wanted an abortion but her parents did not consent to it. The Court preferred to take the consent of the minor and the abortion was allowed.
Provisions in allied legislations have also diluted the Act. Although the abortion act guarantees total confidentiality of any woman, regardless of her age, the Criminal Law Amendment Act, 2013 and the Protection of Children from Sexual Offences Act, 2012 makes it mandatory for the local bodies and hospitals to report any offence or suspicion of offence, to the police. Moreover, it should be noted that the MTP Act requires the woman to only allege rape to bring her case under Section 3, the woman need not prove the rape.
With the objective of revamping and doing away with the problems in the 1971 Act, there were several consultations held by the Ministry of Health & Family Welfare. Several departments such as AYUSH, State Governments, NGOs, Indian Nursing Council, National Commission for Women, Ministry of Law and Justice, and many more, were consulted. 
Following this consultation, the Medical Termination of Pregnancy (Amendment) Bill, 2014 was put up in the public domain for further comments . After taking into account the public opinion, the Medical Termination of Pregnancy Bill, 2016 was drafted. The main objective of this amendment is the empowerment of woman and reduction of illegal, unsafe abortions.
The accessibility to abortions was sought to be made easier for women, victims of rape especially, by increasing the gestation period from 20 to 24 weeks. The Statements of Object and Reason contained in the Bill clearly state that the 20-week cap was extended in light of several genuine cases coming before the Courts, which lead to financial and mental hardship for these women. Moreover, with advancement in scientific technology, the medical community believe that it is safer to carry out abortions till 24 weeks have passed.
(The authors are third year undergraduate students at the National University of Juridical Sciences, Kolkata and Associate Editors for the journal)
 Krishnadas Rajagopal, SC Rejects Abortion Plea of 10-year-old, The Hindu (July 28, 2017), available at http://www.thehindu.com/news/national/sc-rejects-plea-seeking-nod-for-10-year-old-rape-survivors-abortion/article19377784.ece.
 S. 3 (2) (i), Explanation 1, the Medical Termination of Pregnancy Act, 1971.
 Nyaaya, Let’s Talk About The Long Overdue Reforms Needed In The Abortion Laws Of India, Feminism in India (November 22, 2018), available at https://feminisminindia.com/2018/11/22/abortion-laws-reforms-india/.
 Minor’s consent is ‘no consent in eyes of law’ in rape cases, says court, Economic Times (September 25, 2018) available at http://economictimes.indiatimes.com/articleshow/65944754.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
 Chandrakant Jayantilal Suthar & Another v. State of Gujarat Special Leave Crm. 6013/2015.
 Bhavikaben v. State of Gujarat Special Crim App 1155/2016, Madhuben Arvindbhai Nimavat v. State of Gujarat & Others Special Criminal Application 3679/2016.
 R and Another v. State of Haryana, (WPC 6733/2016).
 Sangeeta Soni, Women, know these 5 facts about abortion in India! (and what’s wrong with the act), The Times of India (May 14, 2018) available at, https://timesofindia.indiatimes.com/life-style/health-fitness/health-news/women-know-these-5-facts-about-abortion-in-india-and-whats-wrong-with-the-act/articleshow/64121702.cms.
 Janak Ransang Hanzariya v. State of Gujarat Crim.App. 702/2010.
 Dipika Jain, Abortion laws in India: A review of court cases, pg. 54, Centre for Health Law, Ethics and Technology, Jindal Global Law School, available at http://ipasdevelopmentfoundation.org/publications/abortion-laws-in-india-a-review-of-court-cases.html.
 Constitution of India 1950.
 High Court On Its Own Motion vs The State Of Maharashtra 19 September, 2016.
 Suchita Srivastava & Another v. Chandigarh Administration SLP (C) 5845/2009.
 V Krishnan vs. G Rajan Alias H.C.P.No. 1450 of 1993
 Supra note 10 pg. 31.
 Press Information Bureau, Medical Termination of Pregnancy, March 9, 2018 available at, http://pib.nic.in/newsite/PrintRelease.aspx?relid=177209 (Last visited on December 4, 2018).
 Medical Termination of Pregnancy Bill, 2016