n July 2017, the Additional District and Sessions
court, Chandigarh (India), denied abortion for a 10-year-old girl who
was allegedly raped several times, and impregnated by one of her
relative [1,2]. The Medical Termination of Pregnancy (MTP) Act 1971 was
the basis of this decision. The obstetrician’s report mentioned that the
fetus was ‘beyond that age’ where an abortion would be possible, and
added that "at some stage of pregnancy, the baby has earned the right to
live’’ [2]. The court ruled that an abortion would not be in the girl’s
interest due to the advanced stage of the pregnancy (~28 weeks). The
Federation of the Obstetric and Gynaecological Societies of India
(FOGSI) advised premature induction of labour because either case would
be extremely challenging given the girl’s anatomical inability to carry
a child to term [2]. Since then, there has been a spate of many such
cases.
The entire national debate on this matter has only
defined the fetus as the ‘child’ and seems to have overlooked that this
is primarily a case of child safety and child rights, where ‘child’
refers to the 10-year-old girl who had been abused. Moreover, the debate
has become lopsided due to its engagement with the archaic MTP Act -
1971. Medical view would gravitate towards the fact that the chances of
survival of a premature newborn are much more today than in 1970s, due
to advances in neonatal intensive care. A case of rape of a minor on
multiple occasions merits a thorough criminal investigation, which has
been rather side-lined by the national debate on the Right of Abortion.
According to the Protection of Children from Sexual Offences (POCSO)
Act, 2012 [3], the child’s relative could be guilty of ‘aggravated
penetrative sexual assault’ (i.e. whoever commits penetrative
sexual assault on the child more than once or repeatedly). The Act
clearly states that "Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to imprisonment
for life and shall also be liable to fine." Apart from the punishment to
the offender, the debate has not focused on the several other aspects
that must be evaluated and duly addressed from the perspective of the
pediatricians community of India:
The MTP Act 1971 was brought in to prevent cases of
harmful and unsterile abortions by legalizing the process of abortion
under certain conditions. One of the conditions is the age limit for
abortion. The lawmakers have indicated that a woman had enough scope for
20 weeks to decide whether she wanted to carry on with the pregnancy or
to abort it. And if she did not think for 20 weeks that she wanted to
abort, there would be no reason for her to change her mind thereafter.
Also, by 20 weeks, the fetus has acquired a potential viability and may
be delivered live. In view of the same, the MTP Act 1971, denies relief,
namely abortion, to the pregnant woman when the pregnancy is more than
20 weeks. Thus, in case where a minor girl who has been a victim of rape
resulting in a pregnancy, this law does not allow abortion after 20
weeks, and she is expected to continue her pregnancy till term or labour
whichever is earlier. However, in cases of child rape and pregnancy, it
is important to understand a few key issues.
No one expects a minor to conceive. Most cases of
abuse are within the confines of home or neighbourhood and do not come
to light in view of the victim’s age and ignorance of these issues. And
hence it is almost impossible to suspect or detect pregnancy unless it
reaches an advanced stage as evident in this case. Most cases are
detected when the child is being evaluated for abdominal swelling or
pain or weakness.
This is naturally followed by a period of shock or
denial by the family, in addition to the task of criminal investigation
wherein the child is the witness and has to be examined, both for her
health and pregnancy as well as for the crime perpetrated on her. Thus,
by the time the family receives appropriate legal counsel and approaches
the suitable court, the pregnancy is way beyond 20 weeks. By such time,
the MTP Act 1971 prohibits a registered medical practitioner to carry
out an abortion.
The debate now lies between the child’s right to be
liberated from the confines of an ongoing potentially devastating
condition of being pregnant at such a tender innocent age impacting her
physical and mental health, and the right of the unborn fetus that is
considered viable and not appropriate for abortion.
In recent years, the Honourable Supreme Court of
India has made an exception and allowed abortion after 20 weeks of
pregnancy in some cases where it was discovered after 20 weeks that the
fetus had a medical complication not compatible with life or with the
quality of life. This is in contrast to the issue of child rape
resulting in pregnancy. In the former, the fetus is expected to be
terminated in view of its medical condition and hence, abortion is
appropriate and allowed. However, in the case of the latter, the fetus
if medically healthy, is expected to be carried into the third trimester
and beyond. Thus, the dilemma arises between choosing the interest of
the child victim or that of the unborn fetus. In the absence of a clear
guideline, the best interest of the child should be primary as compared
to that of the fetus.
Thus, the health of the child victim, her age,
physical fitness, cognitive capacity, emotional status, and familial
bonding and support need to be determined in order to decide the course
of action. This can be best done by a pediatrician, rather than an
obstetrician. A separate mental health evaluation may be in order.
Moreover, a neonatologist and excellent neonatal intensive care services
need to be requisitioned to save the fetus after delivery. The newborn
child may be considered for adoption if the biological family (mother
being minor) legally wish to give away the child for adoption; and the
services of a medical social worker would be desirable. A pediatrician
should be the fulcrum of care to be delivered to such a child; and if
the victim is less than 18 years of age, the services of a pediatrician
at a minimum, are absolutely critical. This is consistent with the role
of the Pediatrician highlighted in the recommendations on recognition
and response to child abuse and neglect in the Indian context [4]. In
addition, guidelines for detailed forensic examination of a child victim
of sexual abuse are also available, which the pediatrician should
review, and oversee their implementation while supervising the
management of the child-victim [5].
In view of the above, we suggest following actions:
1. The Government should issue an Ordinance
whereby such boards are constituted at district level hospitals,
preferably medical colleges where available, headed by a senior
pediatrician and supported by an obstetrician, a psychologist, a
neonatologist, a medical social worker and others, to decide the
course of action. Thus, parents and the child would not need to run
from pillar to post.
2. This Board shall decide the outcome of the
pregnancy. If not compatible with the child-mother’s life, earlier
termination of pregnancy should be allowed, ensuring availability of
state-of-the-art care to the newborn as well as the young mother.
3. The terminology in such cases should be
changed from ‘Abortion’ (which implies death of the fetus) to
‘Termination of Pregnancy’ or ‘Delivery’ (which means delivering the
fetus at the optimal point for both the mother and child).
Few more pertinent questions or points that need to
be considered:
1. What should be the role of the pediatrician in
decision-making in any case of abuse of a child below 18 years of
age? Other medical professionals due to their different medical
roles may fail to justify the perspective of the child victim. It
should be reiterated that the ten-year-old is not an adolescent; she
is still a child. A pediatrician should be at the center of all
decision-making in such cases, as these cases relate to the ‘child
victim’ first, and then to the question of fetal life.
2. Do we have a list of guidelines or a protocol
for all judges handling cases of child abuse / child assault? It can
be noted that in the above case, the judges based their decisions
only on medical reports submitted by the obstetricians and
gynecologists. Clearly, a consensus was not arrived at, by the
medical community at-large.
3. Has the Government allotted a Clinical
Psychologist and a Social worker for the child? Has the Government
taken steps to assess if she has symptoms of psychological stress?
Is any social worker helping the family cope-up with the stress?
4. Has the criminal investigation commenced? Has
it been defined what action will be taken against the accused?
5. All Abuse is an attempt to assert Power. Is
the current law a sufficient deterrent? Does the current law have
the power to punish the accused in order to make the accused – and
potential future offenders – aware of the consequences of asserting
power over children.
6. What do we mean by the ‘best interest of a
child’? Can there be a legally framed definition of ‘best interest’
and/or should it not be left to medical science and clinical
judgment?
7. In view of the grave scenario of child safety
in India, why is amending the MTP Act 1971 not a pressing priority?
If girls get impregnated due to rapes, more frequently than what we
may think, should the law not be amended as soon as possible, to
allow an abortion based on sound clinical judgment that lies in the
best interest of the child?
8. State-of-the-art care to the newborn and the
young mother will incur substantial costs. Who will bear the
expenses involved in the short-term and lifelong care? The family
cannot be expected to support optimum care of the unwanted baby.
Will the State bear the expenses? Once the baby is born, she/he
deserves our best; indeed that is her/his basic right to life.
References
1. Court rejects abortion plea of minor’s parents.
The Indian Express 2017 Jul 19; Chandigarh. Available from:
http://indianexpress.com/article/chandigarh/court-rejects-abortion-plea-of-minors-parents-chandigarh-4757232/.
Accessed February 9, 2018.
2. India’s High Court denies abortion for 10-year-old
girl. The New York Times 2017 Jul 28. Available from:
https://www.nytimes.com/2017/07/28/world/asia/india-abortion-10-year-old.html.
Accessed February 9, 2018.
3. The Protection of Children from Sexual Offences
Act; June 19, 2012. Government of India. Available from:
http://indiacode.nic.in/amendmentacts2012The%20Protection
%20of%20Children%22From%20Sexual%20Offences %20Act.pdf. Accessed
February 9, 2018.
4. Aggarwal K, Dalwai S, Galagali P, Mishra D, Prasad
C, Thadhani A. Recommendations on recognition and response to child
abuse and neglect in the Indian setting. Indian Pediatr.
2010;47:493-504.
5. Seth R, Srivastava RN. Child sexual abuse: Management and
Prevention, and Protection of Children from Sexual Offences (POCSO) Act.
Indian Pediatr. 2017;54:949-53.
