The Medical Termination of Pregnancy act bars abortion after 20 weeks even in cases of rape. The CEHAT team narrates the struggle undergone by many child rape survivors who wait for court orders to decide if a child should birth child. Munni was 28 weeks pregnant when the court granted the order for termination of her pregnancy. By the time the procedure was carried out she was 31 weeks pregnant. What caused this delay? Read ahead to find out.
All names of characters and hospitals have been changed to maintain anonymity.
Munni, a 12 year old girl, was discovered to be 23 weeks pregnant at the rural hospital after she complained of pain in her abdomen. She was brought to a public hospital in a metro city by the police for a medical examination.
A complaint was immediately recorded with the police but Munni was not willing to reveal anything about the abuse or abuser.
Munni kept quiet throughout the entire medical examination at the hospital.
The mother pleaded with her. She said that the police will arrest her if the girl didn’t reveal the name. That is when the girl broke down. The abuser was her mother’s employer. He had repeatedly raped her and had warned her against telling anyone or else he would kill her mother.
As news of Munni’s pregnancy spread, they were ostracized by their extended family and community. They had no place to live in the city and only a maternal aunt supported them.
A counsellor discussed the possible course of action for Munni’s health with the mother and the mother mentioned that they wanted to terminate the pregnancy. The doctors had informed her that they are not allowed to terminate pregnancy beyond 20 weeks.
The Medical Termination of Pregnancy (MTP) Act allows termination of pregnancy only upto 20 weeks of gestation, even in cases where minors have been raped. So the counsellor suggested that the court be approached to get permission for an abortion.
An application was made to the High court seeking permission for MTP. By now the gestational age of the pregnancy was at 24 weeks.
The High Court heard the petition after three days as a weekend fell in the intervening period after filing. It referred the matter to the Medical Board of HMJC Hospital in the city. The board’s opinion was that there was no risk to the mother or foetus in continuing pregnancy but termination was preferred due to mental trauma caused to the girl. Dr Rohan, a senior gynaecologist, suggested three options before the Judge:
Survivor carries the pregnancy to full term and baby is given for adoption
A premature delivery by caesarian section could be carried out and the survivor would have to care for the child for two months, after which the child would be given in adoption
Injection for stopping foetal heart would be administered and delivery would be conducted by caesarian section
On the Court’s recommendation, the mother and child were informed of these options. The court wanted their choice to be respected. The mother and child categorically asked for foetal injection to be administered before delivery. At this time the pregnancy was 28 weeks of gestational age.
Immediately, from the chamber of the court itself, the lawyer contacted Dr Hemant who agreed to carry out the procedure using foetal injection.
In an in-chamber hearing, the Court asked Dr Rohan about the risks involved in the third option. The lawyer submitted all relevant papers of Dr Hemant as a MTP health professional. The Court asked Dr Rohan to verify if Dr Hemant was qualified to carry out the procedure and Dr Rohan responded in the affirmative. The Court then asked why this can’t be done at HMJC Hospital. Dr Rohan said that they have carried out the procedure upto 25 weeks gestation but this is 28 weeks and so they were not confident. The required legal papers under the MTP Act viz the registration of the said private hospital where Dr Hemant works under the MTP Act and the doctor’s credentials were submitted to the court.
The Court’s order, however, did not state the specific name of the Doctor or the Hospital where this can be performed, despite the detailed discussion on the matter. It appears that the Court did not deem it necessary to specify details of this nature.
This is where the search for a doctor began. Dr Hemant said that he could not provide MTP since his name was not mentioned in the order. He worked at a private hospital and there was no mention about the hospital or who will bear the cost of an abortion. As an alternative, he suggested that Dr Rohan invite him to the HMJC Hospital to provide the MTP. But Dr Rohan declined to do so.
Going back to court was not an option and was ruled out by the lawyer, Dr Sagarika of Nurture Hospital was contacted and she agreed to carry out the MTP. However, she said that she can’t use foetal injection but she will conduct an early C- section to end this pregnancy. She discussed with the Head of Department (HOD) and then, along with the counsellor, spoke to the mother.
The mother consented to this as there appeared to be no other option and the child was admitted to Nurture Hospital.
On the 5th day after admission, the Dean of Nurture Hospital questioned Dr Sagarika on conducting this procedure at their hospital and asked her to speak to Dr Rohan to manage the case.
She then contacted Dr Hemant who said that he could request one of his colleagues to give foetal injection at the private hospital but could not perform the procedure of removal of the foetus. He suggested that the patient should travel back to the public facility for the expulsion of the foetus after receiving the injection at the private facility. This was not practically possible and would have put the minor girl at a risk of infection.
Meanwhile, a neonatologist at Nurture Hospital opined that they should not willingly let a weak infant be born. He hence suggested increasing the gestational weeks to extend pregnancy. They asked for the opinion of two independent gynecologists in complete disregard of the court order. They also asked for a psychiatric opinion to assess if she was fit to continue the pregnancy.
The doctors were also worried that if it was a female foetus that was to be born dead, or died in the process, then a case under the PCPNDT Act would be filed against them. This is even though the termination was permitted by the High Court within the MTP Act.
On the 12th day of admission the mother was informed that the procedure will be carried out after 5 days. She and the child were extremely distressed. At this point, a meeting was held with the Dean and Dr Sagarika.
The HOD of Gynaec stated that the procedure cannot be carried out immediately. She expressed her concerns about the maturity of the unborn child, need to focus on both lives (survivor and foetus) and to be sensitive towards the challenges future adoptive parents might face if the baby were born with less IQ or other health issues. She said continuation of pregnancy for a few days would not affect the survivor.
While Dr Sagarika was willing, the Dean and HoD decided that it cannot be done immediately. The counsellors requested that this be given in writing so that they could go back to court.
On the 19th day of admission, Dr Sagarika informed the team that the procedure will be carried out the next day. It was finally carried out on the 21st day of admission when the gestational age was 31 weeks.
The ordeal did not end with this but continued. The hospital staff, especially the neonatologists, expected the mother and survivor to arrange for all essentials such as medicines, clothes and diapers, despite clear instructions from the court for the hospital to arrange these in case of live birth.
The procedure of giving the child for adoption was equally complicated and the hospital staff kept coming back to the survivor and her mother for one procedure followed by another. The counsellors had to maintain a daily vigil and remind all concerned that it was the hospital’s responsibility and not that of the survivor or her mother.
The case raises many questions. Was the court order not sufficient for Dr Hemant or Dr Sagarika to proceed with termination of pregnancy? Is it fair on part of the medical board to offer the option of continuing pregnancy when the survivor wants an abortion? What are the consequences of equating a child-rape survivor to a ‘mother’?
Foetal injections are routinely and safely used in third trimester in all major institutions for late abortions for cases of foetal abnormality. Why did the public hospital refuse to give it in this case? Why should the status of the foetus determine its use?
Unfortunately, the ordeal that Munni and her mother had to go through is a common experience for most minor pregnant girls seeking termination of pregnancy beyond 20 weeks.
(The authors work with Centre for Enquiry into Health and Allied Themes (CEHAT), a non- profit working on health and human rights, and engaged in direct intervention with survivors of violence to provide psychosocial support for the last 5 years.)