Supreme Court asks Centre to amend law on abortion for rape survivors
The Supreme Court asked the Centre to amend abortion laws to allow rape survivors, including minors, to terminate pregnancies beyond 20 weeks, while strongly defending reproductive autonomy and refusing to force a 15-year-old rape survivor to continue her pregnancy
New Delhi: A minor child cannot be forced to bear a pregnancy, the Supreme Court said on Thursday while pulling up the Centre and asking it to amend the law to permit rape survivors to terminate unwanted pregnancies even beyond 20 weeks.
In a ruling with far-reaching implications for rape survivors, including children, and the issue of autonomy over their bodies, a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi took strong exception to a plea by AIIMS seeking to set aside the apex court order allowing a 15-year-old girl to medically terminate her 30-week pregnancy.
“Please amend your law so that when there is pregnancy due to rape etc, then time limitation will not be there. The law needs to be organic and in sync with evolving times. Also amend the law so that such trials are completed within a week. Why should the child suffer the pending trauma of the trial also,” the CJI said.
The court said in its impassioned observations that this is a case of child rape and the survivor will have lifelong scars and trauma if termination is not allowed. If the mother does not have permanent disability, termination should be carried out, it said.
“This is a curative petition. Unwanted pregnancy cannot be thrust on a person. Imagine… she is a child. She should be studying now. But we want to make her a mother. Imagine the pain, the humiliation the child has suffered in this,” the bench said.
It asked AIIMS to counsel the survivor’s parents and said the decision has to be that of the person concerned.
“There are children for adoption. In this country we have a lot of sympathies… There are deserted, abandoned children on the streets and even mafias involved in it. We have to look at them. This is an unwanted pregnancy of a 15-year-old child,” it said.
During the proceedings, an AIIMS doctor told the court that it is not child versus foetus but child versus child.
Additional Solicitor General Aishwarya Bhati, appearing for AIIMS, mentioned the curative plea and said the termination of pregnancy is not possible.
“It will be a live baby with severe deformities. Minor mother will have lifelong health issues and cannot reproduce… This child can be given for adoption. It has been 30 weeks now. It is a viable life now,” Bhati said.
Bhati also sought the court’s permission for counselling with the teen and her parents.
At this juncture, Justice Bagchi said, “Who has stopped you? What is your Parens patriae (parent of the nation) approach? Give respect to your citizen. Show data to the parents and if they choose to keep it, then so be it.
“But if they think the mental health is in jeopardy, then they will take a call. Please do not press your curative. The curative can come from the parents. Let us not make it a fight between the state and its citizens. Bring in a psychiatrist and counsellor. Let us not choose for people capable of choosing.”
It is not for AIIMS, the judge said, to choose for citizens and it can only render medical service.
The top court said the decision on termination has to be that of the survivor and her parents. AIIMS, it said, may help them take an informed decision.
“Explain everything to the child and her parents. If after that they want to change their views, then we will see,” the bench said.
Observing that the reproductive autonomy of a mother-to-be must be accorded the highest importance, a bench of Justices B V Nagarathna and Ujjal Bhuyan last week allowed the 15-year-old to medically terminate her 30-week pregnancy.
The top court also dismissed the review plea filed by AIIMS and held that medical termination of unwanted pregnancy cannot be rejected on grounds of the advanced stage of pregnancy or normalcy of the foetus.
Not allowing the termination on that basis would “render the right to bodily autonomy nugatory”, the bench said.
The Centre also filed a curative petition, which is the last resort to seek judicial remedy.
In its April 24 order, the apex court had said the minor in this case is 15 years old and the pregnancy is unwanted. Continuing the pregnancy is not in the interest of the pregnant minor, particularly when she has attempted to end her life on two occasions.
“In the circumstances, we direct that the appellant’s daughter (minor) is permitted to undergo medical termination of pregnancy. The appellant, on behalf of her minor child, shall furnish an undertaking consenting to the medical termination of pregnancy of her minor daughter.
“We direct that all medical safeguards shall be taken by the attending doctors, nurses and staff of the third respondent, AIIMS, where the procedure is to be conducted. We direct that the aforesaid procedure shall be undertaken at the earliest,” the bench had said.
