The Indian supreme court has ruled that a 13-year-old rape victim in Mumbai who was left pregnant after the attack can have a termination. It follows a landmark ruling last month that said doctors should make greater effort to support victims of sexual assault regardless of the country’s abortion laws.
On 25 August, the court ruled that precious time was lost, and added distress caused, to girls and their families when they were forced to bring their individual cases to court. Doctors have been criticized as being far too fearful when dealing with the victims of child rape.
The girl in Mumbai is eight months pregnant, but her condition was only discovered last month, when her parents took her to a doctor.
The court ruling was accompanied by an order instructing hospitals to establish a medical board to investigate and determine such cases, avoiding the need for legal hearings.
“The inference is clearly that the judges are saying that to decide these cases, they have to consult doctors for their opinion – so why can’t hospitals with doctors take the decision themselves?” said senior lawyer Indira Jaising, who welcomed the order but said its success would depend on effective implementation.
“The law as it stands isn’t understood properly by doctors. They are afraid to help victims for fear of criminal prosecution. But it is a given that a minor girl’s pregnancy is life-threatening because her body simply isn’t ready to give birth, so doctors don’t need to worry about interpretations of the law and don’t need court orders to carry out a termination.”
Police have arrested the girl’s father’s business partner on suspicion of rape. The parents tried to arrange an abortion but doctors told them it was illegal. India does not allow terminations after 20 weeks unless there is a threat to the mother’s life.
“They were absolutely shattered when I told them,” said the family’s GP, Dr Nikhil Datar in Mumbai. “She had been complaining of nausea, sleepiness, inability to concentrate and pain but they assumed the symptoms, along with her weight gain, were the result of some thyroid issue.
“They had no idea she could be pregnant. They didn’t want to tell her but it was my duty to inform the police and obviously, in the course of being questioned, she realized that she was pregnant,” Datar said.
After she was denied an abortion, the family went to the supreme court where, after hearing the opinion of doctors, judges said on Wednesday that the pregnancy could be terminated.
In July, the supreme court intervened in a similar case in Chandigarh, where the parents of a 10-year-old girl who had been raped by her uncle sought a termination. In this case, the court accepted medical opinion that the procedure would be too risky for such a young child so far into a pregnancy.
The girl has since given birth by caesarean section. She was not told she was pregnant. Her parents said to her that a stone in her stomach had to be removed. The baby was taken away for adoption.
But in May, the court allowed a 10-year-old rape victim in Haryana to abort her foetus at 21 weeks.
Sangeeta Rege of the Society for Nutrition, Education and Health Action, a Mumbai-based NGO that works with rape survivors, is critical of what she calls the “defensive practices” of doctors.
She said medics fear that if they perform abortions, they will be jailed under a law that says anyone who causes a woman to miscarry in bad faith, or for any other reason except to save her life, will be punished. Yet the clause on miscarriage only applies to women, not girls.
Rege said: “The silence of doctors on this is total. It is well within their power, under the law, to help minor girls and spare them the trauma of running around the courts – and don’t forget there are many who cannot afford to go to the courts – but refuse to do so out of baseless fears of prosecution.”
Datar echoed that view: “They are worried that someone may challenge their decision to terminate and they are not prepared to take that risk.”
The 13-year-old Mumbai girl will have her pregnancy terminated on Friday.
Government data shows 10,000 cases of rape or sexual assaults in India against minors in 2015.