Abstract

This article examines the laws related to abortion in India, demonstrating how conflicting laws create unintended barriers to safe abortion for adolescent girls. It focuses specifically on the situation of adolescent girls seeking abortion, showcasing the unintended consequences that arise from the existing lack of clarity in the legal regime. The article also discusses the recommendations of the Committee on the Rights of the Child and the United Nations’ Convention on the Rights of the Child.

Introduction

Adolescence is generally understood as the transitional phase of development between childhood and adulthood, often considered to begin at puberty. This article uses the term “adolescent” to refer to persons between the ages of 14 to 18¹. Sexuality is an important and normative development during adolescence, as recognised by the Committee on the Rights of the Child (CRC Committee) which calls on States to “balance protection and evolving capacities” when determining the minimum legal age for sexual consent (1). The CRC Committee states that “States should avoid criminalizing adolescents of similar ages for factually consensual and nonexploitative sexual activity.” (1: para 40). It is important to respect and positively affirm the sexual awareness of adolescents and their capacity to engage in sexual activity (2). The need to protect adolescents from predatory adults must be balanced with the need to recognise and validate their sexual desires (2: p 8). It is also now widely accepted that assessing healthcare needs for adolescents requires an understanding of the constantly developing levels of autonomy and capacities to consent (3, 4). This concept of “evolving capacities” is also recognised under Article 5 of the UN Convention on the Rights of the Child.

The legal framework on abortion in India

In India, several laws relate, directly or indirectly, to abortion. Before the enactment of a special law on abortion, sections 312 to 316 of the Indian Penal Code, 1860, (8) criminalised all forms of abortion except to save the life of the pregnant woman. These laws are discussed briefly in turn, below.

The Medical Termination of Pregnancy (MTP) Act (9) was enacted in 1971 to provide for specific exceptions to the prohibition of abortion as set out in the IPC, primarily in response to concerns about India’s high population growth rate and lack of safe abortion services that resulted in high rates of maternal mortality. The Statement of Objects and Reasons specifically bases termination of pregnancy in mental and physical health, humanitarian and eugenic grounds. The MTP Regulations, 2003 (10) – framed under the MTP Act, a subordinate legislation and hence binding – contain strict confidentiality provisions such as the maintenance of a secret register with details of the patients; these details are not to be given out to any person, according to Sections 5 and 6 of the Regulations.

The MTP Act allows women to obtain abortions up to twenty weeks if continuing the pregnancy would involve a risk of grave injury to the women’s physical or mental health or there is a substantial risk of foetal “abnormalities”. However, there are a few qualifications to this provision.

The first explanation to section 3(2) (b) states that where the pregnancy is alleged to have been caused by rape, then “the anguish caused by such pregnancy” is presumed to constitute a grave injury to mental health. The second explanation states that if the pregnancy is a result of the failure of any contraceptive method or device used by a married woman, the anguish caused by this pregnancy is presumed to constitute grave injury. In addition, section 3(4)(a) of the Act states that if a woman has not attained the age of eighteen years, her pregnancy cannot be terminated without the consent, in writing, of her guardian.

Section 5 of the Act allows for abortion after twenty weeks of gestation, but only to save the life of the pregnant woman. This ground has been read liberally by courts and may be said to include the pregnant woman’s mental health (11, 12). The MTP Regulations, 2003 set forth the conditions and procedures for implementing the Act.

The Protection of Children from Sexual Offences (POCSO) Act, 2012 (13) is specifically aimed at protecting children³ i.e. persons below the age of 18 years, from offences of sexual assault, sexual harassment and pornography. It assumes and treats all pregnant adolescent girls as rape survivors and mandates that anyone having knowledge of the commission of a sexual offence against a child, which includes healthcare providers, report the abuse. This obligation to report contradicts the confidentiality and privacy protections under Section 4 of the MTP Regulations. The mandatory reporting requirement can act as a deterrent for adolescent girls from accessing safe abortion services (14) in situations where the pregnancy resulted from consensual marital or non-marital sex, as well as non-consensual situations where the perpetrator is a family member. The Code of Criminal Procedure (CrPC) (15) has a similar reporting requirement for hospitals regarding sexual offences under the Indian Penal Code (IPC). These legislations are framed such that any consensual adolescent sex is criminalised. When their sexuality itself is criminalised, adolescents are less likely to seek out qualified healthcare providers for their reproductive health needs and the law becomes a barrier to abortion access.

The multiple laws that relate to abortion were enacted with different purposes. Some were intended to protect adolescent girls from sexual abuse, while others were intended to facilitate access to abortion for women that qualify. However, in certain circumstances, adolescents who undergo abortions can fall under both sets of laws, and this leads to inconsistencies and conflicts. For instance, the POCSO Act brands all persons under eighteen as children in need of protection (13), irrespective of age and evolving capacities (7), and states that any sexual contact involving a child is a sexual offence. This policy position is also reflected in the IPC, where the age of consent was raised to 18 years in 2013 (8). As such, an adolescent girl seeking an abortion would be presumed to be a survivor of rape or penetrative sexual assault, and the healthcare provider would be obligated to report this to the police (16). Further, notable inconsistencies are also evident in cases of confidentiality and lack of clarity on when a doctor can perform abortions on adolescents without facing criminal sanctions. These will be discussed in the sections below.

The MTP Regulations contain strict confidentiality protections for women who have an abortion. For example, each abortion provider must maintain a register with the details of all the women who are admitted (10), and the register must be kept “secret”—its information “shall not be disclosed to any person” and it can only be inspected under the authority of law (10: Sec. 5(3)).

However, the POCSO Act conflicts with this confidentiality—it requires anyone who knows that a sexual offense has been committed to report it to the police or the Special Juvenile Police Unit, who in turn must report it to the Child Welfare Committee and the Special Court (or Court of Session) within 24 hours (13: Sec. 19(1), 19(6), 21). Under the POCSO Act, having sex with an adolescent girl is a crime, even if it is consensual; the law does not recognise an adolescent’s capacity to consent to sexual acts and, so, precludes the possibility of consensual sex between persons below the age of 18 (13: Sec. 2d, 3a). Therefore, if a pregnant adolescent girl approaches a doctor seeking an abortion, the doctor must report the girl to the police as a survivor of sexual assault, even if this goes against her wishes. Anyone who knowingly fails to make this report can be punished with up to six months in prison (13: Sec 19(1), 21(1)). The same issues arise under the CrPC, which requires all hospitals to immediately report incidents of rape to the police (15).

This provision of mandatory reporting is tremendously problematic. Although the rationale is to ensure that there is no immunity in child sexual abuse offences, the requirement may actually discourage people from reporting, especially if the abuser is a family member (19). Studies conducted on the working of POCSO Special Courts in several states show that where the perpetrator is a family member or partner, adolescent girls often turned hostile while testifying (20). In its 2011 report on the POCSO Bill, the Parliamentary Standing Committee had also recommended that reporting be optional, as making it mandatory could be counterproductive (21: para10.2). Adolescent girls who seek out contraceptive or other reproductive health services may be reluctant to do so out of fear that doctors will report them, and that criminal action may be taken against their partners.

Healthcare professionals are fearful that the wide definition of sexual intercourse under the amended Section 375 of the IPC and the POCSO Act may inadvertently label abortion procedures as rape and attract criminal liability, as Section 375 of the IPC, which provides definitions for rape, prohibits inserting any object into a child’s vagina with or without her consent (8: Sec. 375b).

However, Exception 1 to Section 375 states that medical procedures are excluded from the definition of rape. Similarly, Section 41 of the POCSO Act provides an exemption for medical interventions, if done with a guardian’s consent. Finally, Section 3(1) the MTP Act shields medical providers from criminal liability, as long as the pregnancy is terminated in accordance with the Act (9).

There is some legal ambiguity as to whether consent can be obtained from a de facto guardian or only from a legally recognised guardian. The authority on this is the JJ Act, which overrides all other laws where children are concerned. The requirement of guardian’s consent is discussed in more detail later. As explained here, medical providers are shielded from criminal liability if they carry out procedures in accordance with the laws. Nevertheless, the requirements of mandatory reporting under POCSO Act and the need to obtain guardian’s consent have resulted in a “chilling effect”, wherein providers are hesitant to offer abortion services to adolescent girls.

Unintended consequences of the inconsistencies

The legal inconsistencies identified above have serious consequences on the adolescent’s access to legal and safe abortion. Girls in India may refrain from seeking a legal abortion, or resort to unsafe abortions, in order to avoid the laws’ mandatory reporting requirement, or if they cannot obtain their guardian’s permission. In addition, the serious criminal penalties associated with illegal abortion, and the ambiguous legal framework, may deter medical providers from providing abortion, even in cases where it is legal.

According to some estimates, half of all girls in India are sexually active by the time they are 18, and almost one in five are sexually active by the time they are fifteen (22, 23). Thus, it is essential for adolescent girls to have access to safe abortion services, information and counselling. The current legal framework may impact such access in the following ways:

Requiring medical providers to report adolescent girls seeking an abortion to the police, apart from violating their fundamental right to privacy (24), may drive some girls to seek treatment from unqualified practitioners. If the pregnancy was the result of consensual sex, the girl will not want to report the matter to the police for fear of seeing her partner arrested, charged, and possibly sentenced to a lengthy prison term. This leads to criminalisation of adolescent sexuality.

Even if the pregnancy was the result of rape, the survivor may not want to immediately report the case to the police—she might not feel safe, she may first need counselling, and she might prefer to approach a more survivor-friendly service (perhaps a non-governmental organisation (NGO) with expertise in this area). Thus, adolescent girls may choose to go to unqualified practitioners who will not report. In fact, civil society has documentation of specific instances of such incidents (25). Doctors have also expressed concern that mandatory reporting will result in girls approaching quacks or resorting to other dangerous methods of abortion (26). Similarly, the World Health Organization has noted that “[t]he fear that confidentiality will not be maintained deters many women – particularly adolescents and unmarried women – from seeking safe, legal abortion services, and may drive them to clandestine, unsafe abortion providers,” and that rape survivors should not be required “to press charges or to identify the rapist” in order to obtain an abortion (27).

Due to pervasive stigma around both abortion and sexual intercourse outside marriage, adolescent girls already face significant barriers in their ability to exercise reproductive autonomy. Mandatory reporting by healthcare providers further impairs their access to abortion. Not only do these provisions essentially penalise consensual sex by rendering adolescent girls completely incapable of consent, they also force healthcare providers to choose between their duty to provide quality care to their patients and their obligation to report. Moreover, the provisions are detrimental to survivors of child sexual abuse, who may be hesitant to seek healthcare services if the abuser is a close relation. Without the guarantee of confidentiality, many pregnant adolescent girls choose to forego medical attention from qualified practitioners and instead seek out risky procedures which can pose serious dangers to their health.

Requiring all adolescent girls to obtain a guardian’s consent may also be problematic—in some situations, it may not be practical or safe for an adolescent to obtain a guardian’s consent. For example, where the guardian or one of the guardian’s relatives has raped the girl, getting the guardian’s permission for an abortion may be impossible; allowing the girl to go for an abortion will trigger a police investigation, and the guardian will do everything possible to avoid that. In conservative areas, where premarital sex is highly taboo, a girl who admits to her parents or guardian that she is pregnant may be ostracised, subjected to violence, or even killed. Thus, some girls may seek MTP services from unqualified practitioners who will not require a guardian’s consent. In fact, the World Health Organization has noted that, “Adolescents may be deterred from going to needed health services if they think they will be required to get permission from their parents or guardians, which increases the likelihood of them going to clandestine abortion providers”. (27: p 68)

As recommended by the CRC Committee to India, the State must take measures to ensure that adolescents have access to confidential sexual and reproductive health information and services. This includes emergency contraception as well as abortions (7). Requiring abortion providers to get the consent of a guardian in every instance of an adolescent girl seeking abortion would thus be a breach of confidentiality and deter girls from approaching qualified providers.

At this point, it may also be useful to address a common misperception about the role of the Child Welfare Committees (CWCs) established under the JJ Act. According to section 29 of the Act, CWCs are empowered with the authority to dispose of any cases for the “care, protection, treatment, development and rehabilitation of children in need of care and protection”. Given these wide powers, many people, including service providers and CWC members, believe that it is imperative for medical practitioners to receive permission from the CWC before terminating a pregnancy (28). However, Section 30 of the JJ Act, which defines the responsibilities of the CWC, makes no mention of the power to give consent and/or permission for an adolescent rape survivor to terminate her pregnancy. The role of the CWC is limited to recognising a guardian for a child survivor, and to assign a support person. If adolescents were compelled to seek CWC permission before getting abortions, it would invariably delay their access to reproductive healthcare.