Unwanted Pregnancies Want Protection Need for Rights to Pregnant Rape victims – A legal view
Author: Sarada Rasagnya
The institution of marriage and procreation is a form of living we all are adapted to. Pregnancy can be a boon and sometimes can be a curse, especially when it arises unexpectedly. Most of them, around 44% of unwanted pregnancies arise out of rapes and it takes great efforts and due process to get it terminated. Rape victims go through a lot of psychological pressure due to pregnancies arising out of rape. Supreme court recently in a 14-year-old rape case from Haryana has held that it is necessary for a rape victim to be informed about her rights. The dilemma here is are there any specific rights as such which actually guarantee the protection of the victim. This article aims to shed some light on the rights of pregnant rape victims and the necessity for such rights.
Most of the rape victims end up having unwanted pregnancies, which puts them through physical trauma, especially the minors. The minor goes through a lot of physical pain due to the sexual intercourse that was not welcomed and the consequential pregnancy puts them in a helpless situation. Refusal to legal abortionleads to two probable outcomes first is where the victim goes for an illegal and unsafe abortion which may lead to death and secondly physical, psychological and emotional consequences arising out of pregnancy they were never prepared for.
As per the report of Pratigya an NGO for the Advancement of woman’s rights to safe abortions, the courts refused permission to abortion in cases of minor rape victims. 17% out of 82 cases were refused to permit abortion between April 2016 and July 2019. And as per the report, Indiaspend 56% of abortions in India are unsafe in the year 2017.
Legal Provisions for Abortion:
The Medical Termination of Pregnancy Act, 1971 deals with the procedure, terms and conditions of pregnancy. Prior to this legislation, the Indian Penal Code, 1860 has dealt with abortion.
Sec 3 of the MTP Act permits abortion up to 20 weeks of pregnancy and this time doesn’t apply if the health condition of the women is at risk. In the recent Bill of 2020, the time for termination of pregnancy has been extended to 24 weeks. The act in good faith allows termination of pregnancy up to 20 weeks but beyond 20 weeks the person may need permission from the court.
As per the report of the Pratigya Campaign, women filed a total of 194 writ petitions before the Supreme Court and High Courts, seeking permission to terminate their pregnancies. Among them, 21 cases were filed before the Supreme Court, and 173 filed before the High Courts. Out of all the 173, 139 cases were allowed for Medical Termination of Pregnancy, and 29 cases were denied and the remaining were withdrawn. Among the cases filed before the high court 40 women who petitioned were below 20 weeks of pregnancy and most of them were rape cases.
As per the report rape cases in which permission was rejected, there were varied reasons. It is noted, and in these decisions,the court mainly relied on the opinions of the medical board. Markedly there are no consistent set of rules medical boards follow on which they give opinions, this causes inconsistency.It was also observed that in the case of a minor who was raped, the medical examination happened to be conducted in the 19th week, but due to denial of MTP petition was carried to HC. The high court denied the MTP as the foetus was about 20 weeks.
Among the cases before the supreme court, there were 5 rape cases and 15 foetal abnormalities, which involved over 20 weeks of gestation. Notedly the Supreme Court denied MTP in five requests and permitted MTP in 15 requests. Among the denied by the court, i.e., 5, three involved foetal abnormalities, where the foetus was between 26-28 weeks. It was stated that the supreme court followed the opinion of medical boards that were set up to examine women, in deciding the requests for MTP.
Rights of Rape victims:
There are some protections offered by the legal system to the victims of rape, such as
Protection of identity – Sec 228A of India Penal code bans the publicizing the name or identity of the rape victim
Medical Examination within 24 hours – Though it is for an evidential purpose to conduct a medical examination of the victim within 24 hours of occurrence, Sec 164A of Crpc stipulates that the examination cannot be done without the consent of the victim. But Sec 53(1) of Crpc allows the state to apply force for medical examination of the accused.
In-Camera Proceedings – Sec 327(2) of Crpc says that the court proceeding in a rape case shall be held in camera, that is without the presence of any people except those related to the case. Any person trying to publish the proceedings is punishable except those with permission of the court.
The aforesaid are the rights of a rape victim, they speak about the protection of identity, consent for examination, and protection of the trail proceedings but nowhere there is a mention of protection of the victim. The rights or legal protection available only to protect the victim from society but not the real harm caused to her. The actual right that should be provided to the victim is the right to choose to solve the consequences of the rape. The first and foremost thing that should come under the umbrella of victim rights in rape cases is the right to abortion.
As we have a rule to medical examine the victim within 24 hours of rape, the victim, in the same way, should be tested for pregnancy within a week or so, under the surveillance of the respective authorities, and in case there is an unwanted pregnancy the victim should be permitted for abortion within due time. As we saw in the above mentioned incidents the abortion was denied because the gestationperiod is more than 20 weeks and 24 weeks in some. The victim should be given freedom in unwanted pregnancy abortions.
The probably accurate solution to prevent denial of abortions due to delay in the proceedings or in processing the requests is to delegate the authority of the court by setting up state medical boards. Every metropolitan, city and a few towns near remote villages should have medical boards to examine victims, especially the rape victims.
The right to abortion should be included with the right of the rape victim and also the right of the rape victim to opt for a pregnancy test within one or two weeks of the incident if possible or after a month should be made mandatory. This will avoid inconsistencies. The Medical boards should be given due authority to conduct abortion considering the health of the victim. The same should be filed and reported to the court. Sec 3 of the MTP permits abortion till 24 weeks of pregnancy the same is also applicable here, so giving medical boars the authority will prevent many inconsistencies.
The state’s responsibility is to protect itscitizens; mere protection is not sufficient. Justice delayed is justice denied, to render necessary care comes first than rendering proper justice. The justice system should be the backbone for the victims, that includes protection of the victim before protection of rights of the victim. Unwanted pregnancies are one of the biggest traumatic experiences any women can face, dealing with this in delicate manner is very crucial and also. The author opines that the right to abortion and pregnancy examination within one or two weeks of incident or within a month, should be made mandatory and setting up medical boards is the probable accurate solution.
Pregnant women should be told about their legal rights says SC, 12 March 2021, Economic Times. https://economictimes.indiatimes.com/news/politics-and-nation/pregnant-rape-victim-must-be-told-about-legal-rights-says-sc/articleshow/81466962.cms The abortion law in India is failing the women who need it most, Nushaiba Iqbal, 24 November 2019, Healthcheck.in https://scroll.in/article/941210/the-abortion-law-in-india-is-failing-the-women-who-need-it-the-most https://prsindia.org/billtrack/the-medical-termination-of-pregnancy-amendment-bill-2020 women forced to approach courts to terminate pregnancies within legal 20-week limit, says study, Aniruddha Ghoshal, 01 October 2019, Times of India. https://www.news18.com/news/india/permission-to-abort-women-forced-to-approach-courts-to-terminate-pregnancies-within-legal-20-week-limit-2329037.html Legal rights of rape victim, Manoj Mitta, 12 December 2012, Times of India. https://timesofindia.indiatimes.com/city/delhi/legal-rights-of-a-rape-victim/articleshow/17700134.cms