Let’s start with defining and explaining some core concepts alongside their relevance with a rape survivor and a child to be born.
The constitution of India through Article 21, confers upon every person, the Right to life and personal liberty. The meaning of ‘life’ in this article has been given a wider interpretation by the courts. While comparing the ‘right to life’ of a conceived rape survivor and an unborn child, the primary question to be addressed is “whether both of them are entitled to this right?” With regards to the conceived rape survivor, it is very clear that the right to life encapsulates the rights of a conceived rape survivor as well. The problem arises with regards to the ‘right to life’ of an unborn child.
WHAT DO THE GLOBAL AND INDIAN LEGISLATIONS SAY?
The answer to the question, “when does the life actually start”, is still unclear. However, there are some Global and Indian legislations which advocates for conferring legal status to a foetus. We will start with the Universal declaration of human rights, 1948. Its preamble talks about “equal and inalienable rights of all members of the human family” and further it says that “everyone has a right to life”. The framers have deliberately kept the issue of the foetus at bay but opted for broader interpretation and affirmed that foetus does have a human life and it deserves the legal protection at an early state. The term ‘Everyone’ is understood to mean ‘every member of the human family’. They have opinionated that the provision has a little meaning and it is beyond debate that an unborn is a human being.
The Indian Scenario
The limitation act gives the minor a right to institute a case or make an application for execution of a decree. The explanation provided therein states that “for the purposes of this section, ‘minor’ includes a child in the womb.”
Section 20 of the Hindu Succession Act recognises the right of a child in the womb. It gives an unborn child the same rights of inheritance as compared to a born child.
The Indian Penal Code also provides for punishment for the offence of miscarriage. It accounts for punishment for preventing a child to be born. A woman who causes herself to miscarry is also covered under this provision.
EXAMINING THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
Situations where there is a conflict in whether to abort the child or to bring the foetus in this world are dealt with by applying the ‘Medical Termination of Pregnancy Act, 1971’. Section 3(2) of the act allows the termination of pregnancy by a registered medical practitioner-
Where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or
Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks if not less than two registered medical practitioners are of opinion that continuation of the pregnancy would lead to mother being disturbed mentally or physically.
To put things into a clearer perspective, imagine where any, pregnancy is alleged by the pregnant woman to have been caused by rape or has occurred due to failure of contraceptive, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Section 4 of the act deals with the places where termination may take place and they must be:
(a) A hospital established or maintained by Government, or
(b) A place for the time being approved for the purpose of this Act by Government.
So, the aforementioned act deals with all the modalities and lays down the rules and conditions required to be fulfilled before the government can sanction abortion. This act is considered to be a well-established law and the courts apply it in all the matters related to this but if we look at the things from different perspectives it is clearly visible that even if the mother is not willing to bring her child in this world still she has to give birth because it goes against the right to life of a foetus and here starts the battle between the right to life of a foetus and reproductive right of the mother.
However, the Supreme Court has not kept a strict stance in these matters and has decided on a case to case basis for example in the case of Sarmishtha Chakraborty & Anr. v. Union of India. She was allowed to abort her over 20-week-old foetus with severe abnormalities bypassing the law because her condition was a bit peculiar in itself and the apex court was forced to bend its rigid stance.
In the Nikita Mehta case, Niketa and her husband, along with the specialist who diagnosed a congenital anomaly in the foetus, filed a petition in the Mumbai High Court asking for permission for an abortion in the 23rd week, which was when the problem was detected. The argument supporting them is that in several countries, there is no gestational age limit set for abortion in the case of foetal abnormalities Nikita’s personal reason for wanting an abortion was that she did not want to give birth to a severely disabled infant and witness its suffering; the trauma caused to her and her family was an additional reason. While Niketa failed to obtain a favourable judgement from the court, her case has prompted the government to announce that it will be considering a review of the law.
WHO HAS THE PRECEDENCE OF RIGHT TO LIFE: – A RAPE SURVIVOR OR AN UNBORN CHILD?
As authors, our thoughts are in tandem with the Rajasthan High Court’s recent judgment in the case of State of Rajasthan and Ors. v. S and Ors., The High Court has said that the reproductive choice of a woman is a fundamental right encompassed under the umbrella of Article 21of the Constitution of India. Further, the court held that the right of a rape survivor to make a reproductive choice outweighs the right of the unborn child to be born, even at a later stage. This recent judgment can be said to be a path-breaking judgment in this matter because there are plenty of complications for a rape survivor in giving birth to an unwanted child. The right of the rape victim to decide whether to bring the child to the world or not should be intact and she should have a strong say in this important decision.
A girl, whether major or minor, gets raped and conceives a child. What does it mean? Doesn’t it hinder the state of normalcy for her? Doesn’t it perturb her? Doesn’t it become a haunting thing for her? Doesn’t it affect her mental and physical well-being? We think it does. It harasses the girl to a great extent. The societal ignominy and the mental and physical trauma that the girl goes through is something which cannot be equated with any other trauma. In such a situation, compelling her to give birth to the unwanted baby will bring more disgrace to her. It will further worsen her situation. The child on the other hand, if born would be an illegitimate child who will also face the same, if not more than, level of dishonour in society.
Keeping in mind the excruciating opprobrium that both: the conceived rape victim and the child (if allowed to be born) will face, it would be beneficent to allow the right of a raped victim to take precedence over the right of an unborn child. There is a need to bring about an amendment in the MTP Act to allow a conceived rape victim to abort even at a later stage. Also, rather than having an absolute cap of some weeks (maximum cap of 20 weeks presently), there is a need to assess each and every case individually and any decision as to whether the rape victim should abort or not should be based solely on the medical report of the victim. If even after the passage of 20 weeks, abortion is not life-threatening, then the rape victim should be given preference in judging whether to bring the child into the world or not.
“An Unborn is a Human Being”- Emandi Ranga Rao, Right to life of Foetus – Verification of laws in the context of female Foeticide, International Journal of Law ISSN: 2455-2194, Volume 3, Issue 2, March 2017, Page No. 33-39, http://www.lawjournals.org/download/99/3-1-42-561.pdf.
BY- Deeptam Bhadauria & Srijesh Kumar Singh
National Law University, Jodhpur