WHY OPPOSING THE ABORTION OF CHILD PREGNANCY FROM RAPE?

Reading time: 8-10 minutes.

There are many rights for the protection of children like, The United Nations Convention on Rights of Child (CRC), The Dead Sea Declaration, The World Convention on Human Rights (Vienna Convention). The main aim od this declaration is to protect children below the age of 18 from sexual abuse. Under Article 34 that Right granted to every child to be protected from sexual exploitation and abuse.[1]  In Indian Constitution Article 15(3) which allows the state to make special provisions for women and children, Article 21 ensuring Right to life, Article 39(e)-Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age and strength, Article 39(f) Childhood and youth of children to be protected from exploitation and material abandonment.[2]

Medical Termination of Pregnancy Act section 3 deals with when can a medical practitioner can terminate the pregnancy (a) when the length of the pregnancy not exceeding twelve weeks (b) when it exceeds twelve weeks but not twenty weeks (c) it should performed in good faith if the pregnant women’s life is at risk or if the child were born would suffer any physical or mental abnormalities. This section has explanation which stated that if the pregnancy occur due to rape termination of pregnancy is allowed.[3]

The POCSO 2012 requires that all registered medical practitioners render emergency medical care to attend to the needs of children who have been raped, including access to abortion. That the immediate treatment for survivors of rape must include emergency contraception and abortion services has also been clearly mentioned in policy guidelines issued by the Ministry of Health and Family Welfare in Guidelines and Protocols for medico-legal care for survivors/victims of sexual violence.3 In reality, however, rape survivors who become pregnant, both girls and women, face procedural gaps and a range of barriers in accessing abortion services.[4]

By UNICEF it states that abortion of a foetus from the pregnant girl’s womb is a means by which a pregnancy can be terminated. The decision to abort is a choice made by the pregnant girl after having considered several issues related to abortion. Focusing our attention on girl victims of sexual exploitation here we are able to say that minor girls are neither physically nor mentally prepared to bear children. For instance, a minor girl’s pelvis is not fully matured to bear a child as comfortably as an adult body would. This leads to severe bleeding which eventually is, however, controllable. Child victims themselves are of a very young age and considering that they have been subjected to repeated sexual contacts for the sole purpose of trade, one would assume that all pregnancies as a result of the sexual contacts are unplanned and, generally, even unwanted. If the girl wants to keep the child it may be supported by her rationale of emotional and economic security in later life or an obvious attachment if the baby is of a paramour. Either way, the focus should be on whether the girl is physically, emotionally, and socially capable of bearing and raising the child. Such girls thus face a double jeopardy, that of being helpless minors who are not only coerced into sexual contacts but also bear the repercussions of the act. Having to decide on how to deal with the 89 pregnancy is an issue for which they need immense support and guidance.[5]

While making decisions about abortion answering the following questions may help

• What will it mean to her personal future?

Which basically means does the girls will have all the opportunity as the others. In case of education, job opportunity and it also include peaceful life.

• Will it condemn her to a life of dependency and hardship?

At the age of 17 or 18 she has to take care of not only herself but also a child. Dose it leads to a life completely depended on others?

 • Can she assemble her own resources?

Will she be able to provide all the necessary requirements includes clothing, housing, sanitary and health care for both her and her child?

 • Can she meet the emotional and material obligations of parenthood?

Parenthood is something which have lot of responsibility at that age she has to be a mother of the child.

• How does she feel about other alternatives to abortion like adoption and foster care?

Is she willing to give her child to a family which take care of much better than she could?

• Would her circumstances permit her to complete the pregnancy and give up the child for adoption?

In the case of Marimuthu vs The Inspector Of Police on 19 September, 2016 the court held denial of termination of pregnancy by the medical practitioner and by the court. It was a 10-year-old girl in Chandigarh, who became pregnant after being sexually abused by her uncle. The district court and later the Supreme Court too, on the basis of medical opinion, denied permission for an abortion to the girl, who by then was 32 weeks into her pregnancy.  [6] In this case the medical examiner on the date of 15.04.2016, the Doctor gave the report that the minor girl was pregnant and the age of the womb was found to be 14 weeks. If the case held in a speedy manner it would be a safe abortion. In many cases the trial is not in an effective way the pregnancy period would not be extend. Children of tender ages will forget the incident soon especially in cases where there was no violence or injury. A speedy trial takes care of this situation.

There are several reasons why pregnancies are already at an advanced stage when they are discovered; these became clear during our interactions with the girls and their families. Child is very unlikely to realize that she is pregnant or that being raped could lead to a pregnancy, by the time one or more family members realize that something is not right, or that the child is pregnant, there has already been a delay of several months that is, until the pregnancy is visible. The older children, who may recognize that they are pregnant, may fear that their family members will not believe them. This too may contribute to delay in going to a health facility.[7] Other factors, such as fear from a threat by the abuser to her life or to her loved ones can also keep the child from disclosing the violence and its outcome.

Conclusion

For answering the questions – Does the judiciary have the right to force a raped minor to give birth?

Judiciary is not supposing to force to give birth to a Mainor who is sexually abused. Before deciding that opinion of the minor is very important. Is she physically and emotionally fine with the decision or it will lead her to live  a miserable life? Mainly a complete session about pregnancy and the consequence of pregnancy has to teach her then it is her decision to take. If it is after twenty weeks of pregnancy then she should also give an option to give the child for adoption.  

 Delay in judicial proceedings the pregnancy period of the child is exceedingly more than twenty weeks, who could be responsible for this and how to solve this problem?

Because the Judiciary giving primary importance to the mother after twenty weeks of pregnancy it is very risk for an abortion. Solution for this problem is whenever a medical examinator handle a POCSO case had to immediately report it to the Police officials. If not, it would further delay and have more consequence to it. Also, if the case reported is to the end of twentieth week then the proceeding has to move fast.

After the birth of the child does the minor mother will get same opportunity and development as the other minors? If Yes then How?

The shelter home for children is providing all the necessary support for the POCSO victims. Their education and their expenses are done by the State Government. Still, they need to know more about the value of education and importance of it.

Author: Aswathi Radhakrishnan, School of Law, Christ (Deemed to be University), Bengaluru.


[1] https://www.unicef.org/crc/files/Rights_overview.pdf

[2] Constitution of India

[3] The Medical Termination of Pregnancy Act, 1971 (Act No. 34 of 1971)

[4] Ministry of Health and Family Welfare. Guidelines & protocols: Medico-legal care for survivors/ victims of sexual violence. (India: 2014).

[5] DEALING WITH CHILD VICTIMS OF TRAFFICKING AND COMMERCIAL SEXUAL EXPLOITATION, Department of women and child development, UNICEF

[6] Marimuthu vs The Inspector Of Police on 19 September, 2016

[7] Denial of Safe Abortion to Survivors of Rape in India, PADMA BHATE-DEOSTHALI and SANGEETA REGE, Health and Human Rights , Vol. 21, No. 2 (DECEMBER 2019), pp. 189-198

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