In some relief to the seven minor girls, who were sexually assaulted in different instances, the Kerala High Court allowed the termination of pregnancy over the last six months, reported The Hindu. The minor girls, who are between the age of 13 and 16 years, were subjected to sexual assault during the COVID-19 induced lockdown since March in separate instances, and eventually became pregnant.
Between May 2020 and January 2021, the High Court allowed the termination of pregnancy based on the petitions filed by the respective mothers of the girls, whose pregnancy exceeded 20 weeks. As per the Medical Termination of Pregnancy (MTP) Act, 1971, a pregnancy that has crossed the 20-week period cannot be terminated. The woman or the guardian of the minor girl should bring the matter before a court of law to seek permission to terminate the pregnancy after 20-week gestation.
In each of the seven cases, the Kerala High Court directed the constitution of a medical board in government-run hospitals in the regions concerned, including a psychiatrist, to decide on the abortion. The court in its orders said it will give utmost priority for the mental health and physical conditions of the girls, based on on the reports of the medical boards.
“The minor will be subjected to a medical examination by the medical board. The medical board will submit a report to the court on whether the continuance of the pregnancy would involve risk to the life of the minor child or grave injury to her physical and mental health, whether there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped, whether having regard to the advanced stage of pregnancy, there is any danger (other than the usual danger which arises even in spontaneous delivery or at the end of the full term) if the minor child is permitted to terminate her pregnancy,” said the order in the latest case on January 4, 2021.
The court issued the orders for abortion on the same day as each of the petitions came up, directing the constitution of the medical boards on the same day.
The court directed that the psychiatrist should ascertain certain aspects, including the medical termination process that will not risk the life of the minor child, and her wishes regarding the future course of action with respect to her pregnancy.
In one the cases, the court also directed the Circle Inspector of Police to facilitate the travel of the petitioner and her minor daughter to the hospital and also to ensure the safety of the family at the time of travel to and from the hospital.
The Medical Board constituted as per the court order comprises the superintendent of the hospital concerned, a professor and head of the department. The medical boards, while assessing the cases of each minor so far, said that the survivors revealed that they were shocked when they learnt they were pregnant and expressed anguish regarding their future. One child also said that continuing pregnancy could affect her future and education and expressed her desire to continue her studies. Other survivors, too, expressed similar concerns.
“Continuation of pregnancy in the child could adversely affect her mental health and hence termination is suggested. Based on the available ultrasound scan report there is no physical abnormality for the foetus (present gestational age 22 to 23 weeks). As per the National Neonatology Forum guidelines, the viability is 28 weeks of pregnancy,” the Medical Board observed.
Based on medical reports of these cases, the court observed that the best course of action would be to permit medical termination of pregnancy.
TNM had earlier highlighted the plight of pregnant women and girls due to the stigma associated with abortion as the law does not allow termination of pregnancy beyond 20 weeks. The doctors or the medical board of the hospitals, where the women or girls seek an abortion, will demand consent of the HC in such cases. In several cases involving minors, pregnancy would be identified only after 20 weeks as they and their parents would construe it as irregular menstruation.
According to several reports, despite the MTP Act allowing women or minors to abort within 20 weeks of conception, with the opinion of doctors, many still have to approach the high courts as they are denied abortions. “The fact that such cases came before the court to begin with is troubling and a departure from the text of the Act as well as its implementation,” said a legal report titled ‘Assessing the Judiciary’s Role in Access to Safe Abortion- II’, which was released by Pratigya Campaign, a network of organisations and individuals working for access to safe abortion care in the country.