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Rape victim should not unnecessarily be made to knock the doors of the court for abortion: Madras HC
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Rape victim should not unnecessarily be made to knock the doors of the court for abortion: Madras HC

Meera Emmanuel

The Madras High Court recently emphasised that rape victims should not be made to run from pillar to post for abortion of a pregnancy caused due to the rape, particularly when the pregnancy is less than 20 weeks.

In an order passed on Wednesday, Justice N Anand Venkatesh cautioned,

In cases of this nature, the doctors and the Courts need to be more sensitive and should act fast since the victim girl is carrying a foetus, which keeps reminding her of the agony faced by her due to rape and every moment she suffers mental agony and depression due to the unwanted pregnancy that has been forced against her.

This situation should not happen again and the medical practitioners should be sensitized in this regard.

To ensure the sensitisation of medical practitioners in this regard, the Court issued certain guidelines to be followed in carrying out the abortion of pregnancies resulting from rape.

Case background

The petitioner in the case had been blackmailed into having sexual intercourse. She was about eight weeks into the pregnancy caused by the rape when she approached the Court for relief.

The Court was informed that she had requested for assistance in medically terminating the foetus when she had filed the criminal case with the police. However, no assistance was forthcoming from the police. She then got herself admitted in the Institute of Obstetrics and Gynaecology, Egmore for the abortion.

The institute agreed to perform the medical termination of pregnancy after coordinating with the police. However, she was discharged without the abortion two days after she was admitted. At this juncture, she approached the High Court for intervention.

The Court in turn directed that she be admitted at another hospital i.e. the Government Kasturba Gandhi Hospital for Women and Children to be medically assessed for the abortion.

However, instead of following this order, the hospital decided to refer her case to the Medical Board constituted at the Rajiv Gandhi Government Hospital for medical assessment for the abortion. The police did not follow up on the matter thereafter and the woman was not produced before the Rajiv Gandhi Government Hospital either.

When the matter came up before the High Court on June 12, the judge gave strict directions to admit the petitioner at the Rajiv Gandhi Government Hospital the following day and ensure that appropriate procedures are carried out to effect the abortion of the pregnancy.

Further, the Court directed that the woman should be taken care of at the hospital until she recovers from the abortion operation. This apart, it was ordered that specimens of the foetus and placenta must be sent for DNA testing.

It was only on June 17 that the foetus was aborted, over two weeks after the woman first requested that she be allowed to terminate the pregnancy.

Woman need not be produced before Medical Board for abortion if pregnancy is below 20 weeks

When the case came up before the Court on June 19, the petitioner’s counsel, Sudha Ramalingam highlighted the broader issue of rape victims being forced to knock on the doors of the Court when they want to medically terminate pregnancies resulting from rape, even when the foetus is less than 20 weeks. She therefore requested that the Court issue guidelines to ease the process for rape victims.

The Court in turn noted that the Indian Government has already taken note of this issue earlier, which culminated in the constitution of permanent medical boards across the country. These boards were to assist in responding to urgent requests for abortion and to ensure that there is no delay in examination when such a request is made.

Over and above this, the Court highlighted that the Medical Termination of Pregnancy Act, 1971 already makes it clear that the abortion of a pregnancy that resulted from rape is legal, where the length of the pregnancy is below 20 weeks. In such cases, the Court emphasised,

There is no requirement to produce the victim girl before a Medical Board for that purpose.

The requirement to produce the victim girl before the Board arises only in cases where the length of pregnancy exceeds beyond 20 weeks of gestation.”

In the instant case as well, the Court noted that there was no need for the Kasturba Hospital to refer the petitioner again to the medical board of another hospital to carry out the abortion.

This procedure adopted by the Government Kasturba Gandhi Hospital for Women and Children and General Hospital, Triplicane, Chennai, is unnecessary and they themselves could have done the termination of pregnancy.”

Guidelines issued

The Court proceeded to issue the following guidelines to be followed in cases involving a request to medically terminate pregnancies resulting from rape:

  • The victim should not be unnecessarily made to knock the doors of the Court: In all cases where a victim girl suffers an unwanted pregnancy and where the length of pregnancy does not exceed 20 weeks, she need not be referred to the medical board and the termination of pregnancy can be done as per the provisions of Section 3 of the Medical Termination of Pregnancy Act.
  • Cases where the pregnancy exceeds 20 weeks, but involves a threat to the mother: Even in cases where the length of pregnancy has exceeded 20 weeks, the pregnancy can be terminated in accordance with Section 5(1) of the Medical Termination of Pregnancy Act, 1971, immediately to save the life of the pregnant woman. In such cases, the length of pregnancy will have no relevance and what will be relevant is only the life of the pregnant woman.
  • In other cases where pregnancy is longer than 20 weeks: In all other cases where the length of pregnancy exceeds 20 weeks, the victim may approach the High Court seeking termination of pregnancy, at which point of time, the High Court will refer the matter to the permanent medical board constituted by the Government of Tamil Nadu. The board will ensure urgent/immediate action and submit its report to the Court, based on which a decision can be taken.
  • DNA Test of the conceptus mandatory in abortion cases where a criminal case is pending: In all cases involving termination of pregnancy where a criminal case is pending, samples will be taken for DNA test of both the mother and the conceptus (foetus and placenta) and it shall be sent to the forensic laboratory through the concerned police and a report shall also be received from the lab.

The Court has added that these guidelines must be strictly complied with by the police and medical practitioners in the State. The government has also been directed to issue a circular informing the concerned functionaries of these guidelines.