Adding Insult to Injury: Denial of Medical Termination of Pregnancy to Child Survivors of Sexual Violence or Abuse

Adding Insult to Injury: Denial of Medical Termination of Pregnancy to Child Survivors of Sexual Violence or Abuse

Dr. Sundari Ravindran, CommonHealth

In a recent judgement, the Kerala High Court disallowed permission to terminate the third-trimester pregnancy of in a 12-year-old girl who had been impregnated by her minor brother. The parents of the girl had approached the Court seeking the termination of the girl’s pregnancy on the ground that going through the child delivery would cause ‘cataclysmic consequences’ to the girl’s physiological and psychological condition. The Court ordered the Superintendent of the Government Medical College to constitute a Medical Board to examine the girl. Within two days, the Medical Board produced its opinion. The Medical Board reported the pregnancy to be of 34 weeks’ gestation based on Ultrasonography. The Medical Board recommended pregnancy termination:

Considering the tender age and psychological trauma, the medical board has opined for termination of pregnancy.” (WP (C) 42678 of 2023, paragraph 4).

The report further observed that the mother was at risk of complications inherent in the procedure of termination, and the foetus was also at risk of morbidity and mortality as inherent due to prematurity.

The Court took the view that the report was unclear and had an interaction with members of the Medical Board on the same day. The Medical Board was requested to examine the girl once again and submit a revised report within the next two days. The Medical Board’s revised report changed its stance and observed that

Continuation of pregnancy for another 1-2 weeks till 36 weeks is unlikely to seriously affect the psychological wellbeing of the mother. It will also help in improving the overall outcome of the baby. So we recommend to continue the pregnancy and deliver by 36 weeks…We recommend Caesarean section rather than vaginal delivery because it is having lesser psychological impact for the girl” ((WP (C) 42678 of 2023, paragraph 6).

Based on the Medical Board’s report, the Court rejected the request of the petitioners for medical termination of the 12-year-old’s pregnancy. It observed “this is not a case where termination of pregnancy is an option” on the grounds that the foetus was of 34 weeks’ gestation and fully developed, and that “Termination of pregnancy at this point is not tenable, if not impossible; and obviously, therefore, the child will have to be allowed to be born.” (WP (C) 42678 of 2023, Paragraph 10)

The 12-year-old girl from Kerala thus joined the ranks of many other child-mothers let down by the medical and judicial systems of the country, to live a life of untold suffering.

The judgement has significant physical and mental health consequences for the child-mother and the child she will give birth to. Carrying a pregnancy to full term carries higher risk of death, serious pregnancy complications, and life-long afflictions such as obstetric fistula, a hole in the birth canal that causes urine and/or faeces to leak into the vagina[1][2]. This is because a child’s pelvic bones and spine are not developed enough to carry the weight of a pregnancy without damage. The cervix and birth canal are far too narrow, and a vaginal delivery would run a serious risk of obstructed labour. Experiencing sexual abuse in childhood per se is associated with a wide range of psychiatric outcomes, including post-traumatic stress disorder (PTSD) and schizophrenia[3].

Children born to girls in early adolescence are more likely to be born pre-term or small for gestational age, have low-birth weights, and also have a higher probability of dying within the first month of birth1. Children born to mothers who have experienced sexual abuse may be affected by their mothers’ being less sensitive and available and at times, hostile in their interaction with their children[4]. Studies also show that in the aggregate, unwanted children run an increased risk for negative psychosocial development and mental well-being in adulthood[5].

Previous judgements in cases of third trimester abortion have recognised the potential negative consequences of denial of abortion. For example, in a case very similar to the present one, of a 13 year old girl made pregnant by her sibling, the Court allowed termination of a pregnancy of 26 weeks gestation, and observed:

In the instant case, the pregnancy is that of a minor girl of 13 years. The said pregnancy will cause a grave injury to the minor which will remain a scar throughout her life. It may even have the possibility of reminding the victim of the incident of rape. It is obviously not in the interest of the society to have this young victim to undergo the trauma of the incident of rape every day in her life. The anguish that the pregnancy causes to her will be lifelong and she may have to live with the traumatic experience throughout her life. The parents and the siblings will also have to share this trauma throughout their lives… The young age of the victim, the consequences pregnancy will force upon the victim, her parents and even the unborn child are matters which this Court cannot ignore.  (W.P. (C ) No. 9982 of 2021 paragraphs 11&12).

As recently as in May 2023, a 15-year-old girl made pregnant by her sibling was permitted to terminate her pregnancy at 32 weeks of gestation. The judgement states that

[1] WHO (2023). [2]  UNICEF (2024). [3] Hailes, H. P., Yu, R., Danese, A., and Fazel, S. (2019). Long-term outcomes of childhood sexual abuse: an umbrella review. Lancet Psychiatry 6, 830–839. doi: 10.1016/S2215-0366(19)30286-X [4] van Ee E, Blokland J. Bad Blood or My Blood: A Qualitative Study into the Dimensions of Interventions for Mothers with Children Born of Sexual Violence. Int J Environ Res Public Health. 2019 Nov 29;16(23):4810. doi: 10.3390/ijerph16234810. PMID: 31795508; PMCID: PMC6926844. [5] David HP. Born unwanted, 35 years later: the Prague study. Reprod Health Matters. 2006 May;14(27):181-90. doi: 10.1016/S0968-8080(06)27219-7. PMID: 16713893.

Considering the fact, the child is born from her own sibling, various social and medical complications are likely to arise. In such circumstances, the permission as sought for by the petitioner to terminate the pregnancy is inevitable (W.P. (c ) No. 15534 of 2023, paragraph 5).

There are several similar examples from other courts in India.

In view of previous judgements favouring the termination of pregnancies in the third trimester in girls in very similar circumstances, the question then arises whether the Court had no option but to deny the termination because, (as noted in the judgement) ‘termination of pregnancy of 34-week gestation is not tenable, if not impossible?’

A review of the scientific literature on this topic shows that late third-trimester pregnancy terminations, while rare, are not impossible and may be carried out safely by skilled professionals. In a 2014 study from the USA reporting on the termination of more than 500 third-trimester pregnancies for reasons of gross foetal anomaly, the complication rate was less than 0.5%[6] (Hern 2014). In 2017, when the case of a 10-year-old pregnant girl from Chandigarh seeking MTP was being heard in the Supreme Court, activists and lawyers from India, including this author, were gathering all available medical evidence on the safety of third-trimester abortions. Three US-based obstetrician gynaecologists wrote an open-letter to be produced as part of the evidence to the Court, in which they stated unequivocally, that

It is unlikely that medical termination of pregnancy poses more risk than ongoing pregnancy and term delivery, and in fact the converse maybe true.[7].

The 2021 Amendment to the MTP Act allows pregnancy termination at any stage in pregnancy when the Medical Board diagnoses substantial foetal abnormalities. This would imply that pregnancy termination at later gestations is feasible and safe. In fact, the recent safe abortion guideline of the World Health Organization, after careful consideration of scientific evidence, recommends against laws and other regulations that prohibit abortion based on gestational age limits[8]. Medical as well as judicial decisions on medical terminations of pregnancy in the third trimester need to be sensitive to the barriers that impede an adolescent’s abortion seeking. A review that examined petitions seeking MTPs post 20 weeks found that a majority, especially those under 18 years, did not realise that they were pregnant till late in pregnancy because

[6] Hern WM. Fetal diagnostic indications for second and third trimester outpatient pregnancy termination. Prenat Diagn. 2014 May;34(5):438-44. doi: 10.1002/pd.4324. Epub 2014 Feb 27. PMID: 24424620; PMCID: PMC4238813. [7]  Open letter dated 1 August 2017, signed by – Lisa Harris, MD, PhD, F Wallace and Janet Jeffries Professor of Reproductive Health,University of Michigan, Department of Obstetrics and Gynecology, Ann Arbor, Michigan(in a personal capacity); – Daniel Grossman, MD, Professor, Department of Obstetrics, Gynecology andReproductive Sciences, Director, Advancing New Standards in Reproductive Health(ANSIRH), Bixby Center for Global Reproductive Health, University of California, SanFrancisco, USA; – Shelley Sella, MD, Medical Director, Southwestern Women’s Options, Albuquerque, NewMexico, USA [8] WHO 2022 Abortion Care guidelines. P. 28.

they were not aware that the sexual encounter could result in pregnancy; or were afraid to disclose the same to their parents. Those from low-income households or dysfunctional family settings may not receive the necessary parental support. Providers’ negative attitudes to pregnancies in girls and unmarried women may represent a further barrier [9].

Contradictory judgements have caused a lack of clarity as to when a woman or a girl may be legally permitted to terminate a pregnancy beyond 24 weeks. Courts may consider the provision of legal abortion to all child survivors of sexual abuse and rape, without imposing a legal upper limit, in recognition that the pregnancy constitutes a serious risk to their life, health and mental health. This is in keeping with the provisions of the Protection of Children from Sexual Offences Act 2012 and the Criminal Law Amendment Act 2013, which provide for the right to treatment for sexual abuse survivors. Abortion is an essential component of such treatment.

[9]  Stillman M et al. (2014). Abortion in India: A literature review. New York: Guttmacher Institute