How India’s Abortion Laws Actively Take Away Individual Choice From Rape Survivors

Posted on July 31, 2015 in Society

By Vaagisha Das

The law is made for the benefit of the people. This is so much the case that, in the minds of the people, law and justice are synonymous. Hence, one is forced to concede the failure of the law when a high court judge “expresses sympathy“, but refuses to help a rape survivour as “it would not like to do something which is contrary to law“.

This is in reference to the recent headline grabbing case concerning a 14 year old rape survivour, who sought the permission of the Gujarat High Court for the termination of her pregnancy after 24 weeks. The class X student was allegedly raped by her doctor under the influence of sedatives, when she went to seek treatment for typhoid. She became aware of the pregnancy only when she was taken to the doctor, complaining of severe stomach ache. The parents appealed to the High Court for abortion; however, their plea was rejected as the current law allows for abortion only up to 20 weeks. The survivour then moved the Supreme Court, opened a small window of hope when it issued a flexible order. It set up a panel of five doctors who examined the case and allowed for the abortion to take place.

silhouette of a girl
For representation only

While this order gave the 14 year old some respite, this statement that abortion would be allowed only if the survivour was found to suffer ‘severe medical complications’ as a result of carrying the child, and the ultimate decision would rest in the hands of the doctors examining her, creates problems for the rest. The judgement draws power away from the survivour and into the hands of the medical practitioners examining her, not allowing her or her family to have any say in the matter. It should be noted that there is no current constitutionally guaranteed right to abortion in India. The limited ambit of this right stems from the Medical Termination of Pregnancy Act, 1971, where S. 3(2) provides for the ‘termination of pregnancy’ in certain cases. This is what includes rape cases, but the consequences are determined by doctors, and it is only after their consent that any action can be taken to abort the pregnancy.

Considered rather conservative from a feminist perspective too, this undermines the authority of the women as autonomous agents, in a way reinforcing society’s conception of women as weak and incapable of making informed choices. In the context of rape survivours, the very letter of the law seems patronizing – and attention is diverted from individual choices and rights to a decision that is focused on appeasing the society. An example is 23 year old Shanti, who was kept captive for seven months by her rapists, and then not allowed to abort the child at 21 weeks- she was told to ‘be brave and bring the child into the world’.

For rape survivours who are minors and thus unable to understand the full weight of the occurrences, the consent of their families should ideally suffice, however this is a far cry from reality where their choice must be justified before doctors first. This is exactly what is being done in the aforementioned case, where the girl and her family emphatically do not want the child – yet the ultimate decision was left to the doctor’s interpretation of the law. The MTP Act, whose amendments were put into place to benefit women, seems to counteract its purpose here. With no avenues left, the girl might have been forced to take matters in her own hands and opt for an illegal abortion, which may have prolonged her suffering.

Mentally disabled rape survivours are similarly left to the mercy of the State, which would determine the best course of action to be taken. So far, judgements have been rather subjective – a Chandigarh rape survivour was directed by the HC to abort her child, but this was overruled by the SC. However, this is in contrast with a West Bengal case, where abortion was permitted – though it’s unsure whether it was due to the girl being 14 weeks pregnant only or due to her medical condition.

While concerns over sex selective abortions are valid, hence the inclusion of the 20 week clause, it should be noted that taking away the right of the individual for abortion is unethical, for it deprives the woman of control over her own body. The right to life in Article 21 of the Indian Constitution is considered paramount- and it includes the individual’s right to live a life of dignity. One could focus on more stringent laws regarding use of medical technology for sex-selection, and the enforcement of such laws rather than denying access to abortion. What if we prioritised individual rights instead?