How the system badly failed a minor rape survivor in Bareilly | analysis | Hindustan Times
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How the system badly failed a minor rape survivor in Bareilly

analysis Updated: Oct 13, 2016 19:33 IST
Satya Prakash
Satya Prakash
Hindustan Times
Highlight Story

Raped and not allowed to abort the foetus, the 14-year-old (pictured) finally delivered a boy in an ambulance early Thursday after a nurse at a community health centre in Uttar Pradesh’s Shergarh examined her but declined to help on learning that she was a rape survivor (Sachin Saini/HT File Photo)

A health worker’s refusal to attend to a minor rape survivor in Bareilly to help deliver an unwanted child exposes the rot in the system that betrayed her trust and stripped her of dignity, despite the law allowing women to get rid of such unwanted pregnancies.

Raped and not allowed to abort the foetus, the 14-year-old finally delivered a boy in an ambulance early Thursday after a nurse at a community health centre in Uttar Pradesh’s Shergarh examined her but declined to help on learning that she was a rape survivor.

Look at the continuing saga of tragedy that struck the poor girl and her family. First she was repeatedly raped by a man in her village on the pretext of marriage and abandoned when she conceived.

Then, her family’s attempts to get the foetus aborted met with apathy and failure, thanks to the system that lacks compassion and refuses to respond in time. Even after the Allahabad high court’s August 22 order to the chief medical officer, Bareilly to review her case, the hospital wasted several days making it too late to abort.

Read | Bareilly teenage rape survivor denied abortion by panel of doctors

The law

The Medical Termination of Pregnancy Act, 1971 allows abortion of up to 20-week pregnancy if it involves risk to the life of the women or grave injury to her physical or mental health. It also permits abortion in cases where there is risk of the baby suffering from physical or mental abnormalities that could leave it handicapped.

Where the length of the pregnancy does not exceed 12 weeks, it can be terminated on the advice of one medical practitioner but in cases involving pregnancies of more than 12 weeks but less than 20 weeks, two registered medical practitioners are to be consulted.

But the Indian law on abortion is considered to be pro-choice as an adult woman does not require any other person’s consent. It’s required only if the woman in question is a minor or she is of unsound mind. Consent of guardian is required only in cases of minors or lunatics.

Explanation-I to Section 3 of the Act specifically takes care of women sexually assaulted against their will as it says, “Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”

Read | I don’t want the child: Bareilly rape victim denied termination of pregnancy

Judiciary’s response to rape survivors’ abortion cases

This was not the only case in the recent past where a judicial response was called for to terminate the pregnancy of a rape survivor. On July 25, the Supreme Court allowed a rape victim to terminate her 24-week pregnancy after doctors said the malformed foetus posed a danger to her life. The Supreme Court has yet to decide the woman’s challenge to the 20-week ceiling under the law.

Last month the Bombay high court – which laid down a set of detailed guidelines on abortion in cases involving undertrial prisoners -- ruled that a woman had a right over her body and she alone could take the decision whether to become a mother or not.

Abortion laws abroad

Many countries following the Catholic tradition have pro-life laws either prohibiting abortion or allowing it only in exceptional cases. But generally most of the countries allow abortion to save the woman’s life or if the foetus is abnormal. However, each country has its own limit, which in most cases is more than 20 weeks. Switzerland, Great Britain and the Netherlands are the only countries to not have such a ceiling.

Read | Why no outrage over this rape victim denied permission by court to abort?

Problem areas

Despite following a pro-choice approach, the Indian law has many shortcomings. What if the rape survivor has crossed the 20-week period up to which abortion is permissible? What if the pregnancy has crossed the 20-week period and the foetus has developed abnormalities?

Despite The Pre-Natal Diagnostic Techniques (Regulation and Misuse) Act, 1994 prescribing strict punishment for female foeticide, the MTP Act has been misused to terminate pregnancies illegally.

Supreme Court lawyer Aiswarya Bhati favoured amendment in the MTP Act to deal with the issues that have frequented the courts in the recent past.

“It is unfortunate that this minor girl had to undergo such a trauma and humiliation for several months. I strongly feel that there is a requirement to have a re-look at the provisions of the Act for relaxing the conditions for abortions in extra-ordinary situations, particularly in cases involving rape survivors. Medical science has advanced a lot since this law was enacted in 1971,” Bhati told HT.

Bhati, however, said it has to ensured that the law is not misused for sex selection and female foeticide.

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