Empathy and Justice: Abortion Rights for Minor Rape Victims in India

by | Feb 19, 2024

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About Aryan Kapoor and Rena Shah

Aryan Kapoor and Rena Shah are second year law students at NALSAR University of Law.

Otherwise viewed as a laudable step in addressing rights to abort, India’s Medical Termination of Pregnancy Act 1971 (MTP) inadvertently leaves minor rape victims vulnerable. A recent decision of the Rajasthan High Court has highlighted these gaps, prompting a critical examination of victims’ rights to abort.

Section 3(2)(b) of the MTP permits abortion within 24 weeks in cases endangering a pregnant woman’s life or causing grave injury to her mental and physical health. Explanation 2 to Section 3 specifies that mental injury includes trauma from rape-related pregnancies. However, the 24 week limit fails to address delays in reporting such pregnancies, especially among minors, due to factors such as limited awareness, immaturity and social stigma.

A recent ruling by the Rajasthan High Court reasserted this legal framework in determining the plea of an 11 year old’s 31 week rape-related pregnancy. Citing the advanced stage of the pregnancy and a fully developed foetus’ right to life under Article 21 of the Indian Constitution, the Court refrained from examining the cause for delay in raising the plea. Despite acknowledging the impact of rape on the victim, the Bench prioritised the foetus’ right over the victim’s right to a dignified life and personal liberty, also protected under Article 21.

While the foetus’s right to life is vital, it cannot be divorced from the rights and mental well-being of the victim, protected by Article 21. The Court’s decision overlooks the significant psychological toll of carrying a rape-related pregnancy, particularly for minors who may not fully understand the challenges involved. A study reports that 30% to 50% of adolescent rape victims suffer from post-traumatic stress disorder, which is further exacerbated by the pregnancy serving as a constant reminder of the distressing experience. Moreover, minor victims often face hurdles in recognising and reporting their pregnancies due to trauma, social stigma, and delayed acknowledgment, especially when they are unaware of the physical changes linked to childbearing. In the present case, the Bench did not attempt to unearth the cause for delay in discovery, which was only revealed when the minor’s family approached a doctor for her sudden weight gain. The Court’s decision strictly adhered to the legal limit set by the MTP, resulting in the denial of abortion. By ignoring these factors, the judgment fails to address the complex realities faced by rape victims seeking abortion.

Despite common denials of abortion rights beyond legal limits, courts have championed minor victims’ right to terminate pregnancies due to emotional trauma. The Punjab and Haryana High Court, in R & Anr v State of Haryana, held that the termination of certain pregnancies should be permitted beyond the statutory limit in situations such as rape. Similarly, the Gujarat High Court, in XYZ v State of Gujarat, emphasised that forcing a woman into motherhood from rape is against constitutional freedom. The Delhi High Court also affirmed the right of females to decide if they wish to enter motherhood and declared denial of such rights to be opposed to the right to a dignified life, under Article 21. The court emphasised the mental and physical anguish caused to the victim, and that the pregnancy would be a constant reminder of the traumatic event. Supreme Court Judge Justice Bhuyan has questioned the soundness of compelling rape-related pregnancies. Notably, this judgment of the Rajasthan High Court stands in arbitrary contrast to its previous decision wherein the Court held that a woman’s reproductive choice is a fundamental right and her right to abort ‘heavily outweighs’ the foetus’ right to life. The aforementioned rulings, in contrast to the recent decision of the Rajasthan High Court, recognise the distress caused to minor rape victims, and emphasise the need to protect their dignity and decisional autonomy.

As we navigate abortion rights, it is imperative to empathise with the plight of minor victims and move beyond the restrictive 24 week limit. The recent judgment underscores the need for expanding legal frameworks and a compassionate judicial approach, to ensure that the abortion rights of minor victims are upheld irrespective of delays in seeking judicial permission.

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