A disturbing judicial trend to inhibit access to abortion services in India

Two decisions, one of the Kerala High Court and the other of the Supreme Court of India represent a disturbing new trend of courts leaning away from respect for bodily autonomy and the choice of a pregnant person in access to abortion services.

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IN a short span of four days, from December 18 to December 22, the fate of a 12-year-old girl child who is pregnant due to rape by her minor brother was decided by the Kerala High Court.

The girl child sought termination of the pregnancy on the ground that giving birth would lead to "cataclysmic consequences to her physiological and psychological condition".

On directions of the court rejecting the plea for termination, she has to go through with the pregnancy. The court still facilitates 'justice'; by offering protections under the Juvenile Justice (Care and Protection of Children) Act, 2015 and maintaining anonymity.

Although the girl child is only 12 years old and any sexual intercourse is rape due to the age of consent being 18 in India, in all 12 pages of the judgment of the Kerala High Court, the word 'rape' is conspicuously absent.

The silent acknowledgment is in the court's direction that the minor brother cannot be in her proximity. Not only is there no mention of the rape, but the pregnant girl child is also not treated like a rape victim.

The medical board constituted at the Government Medical College, Manjeri, in its initial recommendation found that due to the age and psychological trauma, the pregnancy must be terminated.

They further said that there is an increased risk of mortality and morbidity for the foetus due to pre-maturity. Despite this being the opinion of the medical board, the single judge of the Kerala High Court without any explanation found this unclear and insufficient.

Also read: Age of consent, marriage and the POCSO Act

As recently as 2019, the Supreme Court reiterated the importance of courts not acting as appellate authorities over the opinions of medical experts in the absence of mala fides.

Rejecting the expertise of the board, the court arranged an interaction with the superintendent and doctors from Government Medical College, Manjeri. These doctors said that the girl child was in good health and the pregnancy could be carried to term.

Thereafter, the court constituted a second 'special' medical board to reevaluate the mother and foetus. This report, a complete u-turn on the initial medical board's opinion, found that continuing the pregnancy will not affect the psychological condition of the pregnant girl child.

The court being satisfied with this opinion (despite it being completely contrary) accepted it.

The court gave a final finding that this is not a case where termination of pregnancy is possible. Despite there being no medical opinion on whether termination at 34 weeks was risky, or any legal barriers under writ jurisdiction. In fact, just six months earlier, in June 2023, another judge from the same court allowed the termination of a pregnancy at 31 weeks.

The Delhi High Court has allowed termination at 33 weeks. The Calcutta High Court at 35 weeks. This is by no means uncommon.

In fact, it is very common that pregnancies are detected late due to a lack of awareness about indications and symptoms of pregnancies, malnutrition, disabilities, or health conditions like Polycystic Ovary Syndrome (PCOS).

Children, especially those who have had sexual relationships or have been raped, are often scared to tell elders or doctors about symptoms. In any case, the court cannot make decisions in a manner that is punitive towards petitioners seeking pregnancies for detecting it late.

Also read: Law Commission rules out reducing age of consent, calls for greater judicial discretion in POCSO cases

What prevented the court from allowing the termination of pregnancy then? Last year, the Supreme Court, when hearing the case of a 27-year-old woman who was seeking termination at 25 weeks, said in court that they could not make exceptions for a case that was not of rape, danger to the pregnant person's health or foetal abnormalities.

In India, the Medical Termination of Pregnancy Act, 1971 allows terminations up to 24 weeks of gestation. Upwards of 24 weeks have to be allowed by the court.

The law only allows termination in two situations for cases beyond 24 weeks, to save the life of the pregnant woman or if there are substantial foetal abnormalities.

The Act recognises that where pregnancy is caused by rape, continuing the pregnancy is a grave injury to the mental health of the pregnant woman.

In the Supreme Court case, the danger to the pregnant person's health was that she was suicidal and had grave depression due to her pregnancy. In this case, the 12-year-old girl is a rape victim for whom there will be harmful physiological and psychological consequences of taking the pregnancy to term.

The termination is indisputably needed to save her life. The court's rejection of the initial report recommending termination is suspect, and the reconstitution of the medical board leading to the second opinion denying termination after the first opinion allowed it; is repeating the same pattern we saw in the Supreme Court case.

There are emerging patterns of second medical opinions, narrow readings of the law, 'interactions' with the doctors and 'counselling' of pregnant persons. It also brings to question the impact of 'judicial conscience' in the context of abortion cases, which was explicitly used by one of the judges in the Supreme Court case to deny the termination of pregnancy.

All these considerations cannot take precedence over the bodily autonomy of a pregnant person, especially when the law allows termination beyond 24 weeks to save the pregnant person's life. Adjudicating abortion cases in this manner does not comply with the right to reproductive choice of the pregnant person protected by the Constitution of India.

Also read: CJI-led Bench rules in favour of unborn baby's heart in 26-week pregnancy case

When courts across the country including the Supreme Court have allowed termination of pregnancies upwards of 24 weeks for reasons of risk to mental health and life of the pregnant person, socio-economic conditions of the pregnant person and pregnancies resulting from sexual assault or rape, it is unclear why the Kerala High Court and even the Supreme Court rejected pleas for termination of pregnancies where there is a clear danger to the life of the pregnant person.

When there are no barriers in the law or medical science to such termination, what remains is the social stigma of abortion and claims to foetal personhood.

Legal access to abortion services in India is more progressive when compared to countries such as the United States, but these judgments reflect a disturbing trend and the urgent need for courts to center respect for bodily autonomy and the choice of a pregnant person in access to abortion services.