The Supreme Court’s recent pronouncement on abortion rights comes as a breath of fresh air in a national and international scenario where religion and conservatism seem to be deciding when a woman can get an abortion. Justice Chandrachud in his judgment focussed on numerous areas concerning women who are married and unmarried. In addition, the judgment went a step further and discussed the rights of minors in need of an abortion, or ‘Medical Termination of Pregnancy’ (MTP). According to the existing laws — specifically the Protection of Children against Sexual Offences Act (POCSO) — all sexual activity with a minor, including sexual activity between two consenting minors, is considered a crime. POCSO mandates that a Registered Medical Practitioner (RMP) who comes to know about a pregnant minor, must report their details to the concerned authorities. Now, the judgment brings in what seems to be an exception to the rule wherein if a minor and their parent/guardian don’t want to report to the police, then the RMP should not give any identifying details of the case to the police.
We spoke to Vidya Reddy who works at Tulir – Centre for Prevention and Healing of Child Sexual Abuse in Chennai, about the judgment. Excerpts from the interview:
The judgment by Justice Chandrachud on abortion rights includes the right of minors who have become pregnant through consensual sexual activity and are seeking an abortion post the 24-week mark. The order says that an RMP should not, on the minor and guardian’s request, give the personal details of a minor to the concerned authorities, in reporting under POCSO since the law mandates reporting and considers all sexual activity by minors as criminal. Is this a good move?
I think the right to health and life is paramount, especially when the law is not in consonance with reality, as Justice Chandrachud has rightly pointed out. The realities being the fatality of botched abortions and the increased possibility of maternal mortality among teenagers who have carried the foetus to term due to the fear of the law taking over, and opt for non institutional deliveries.
The judgment is new, and there will be more clarity with time. For instance though the judgment refers to ‘women under 18 years who engage in consensual sexual activity’, there is no way to discern whether a case is consensual or not. This is because Justice Chandrachud obviously hopes that it is only the consensual cases who will not want to report the matter to the police. I believe that is why he cleverly added ‘and’ rather than ‘or’, so if the child and guardian have contradictory views then the case will have to be redressed differently.
While the default setting would be to report it to the police, only if the minor and their guardian request that their details are not reported, can the RMP just record that MTP sans any identifying information, and inform the police. As the police cannot investigate without details, I suppose they, too, will record it as such and it will just get added to the statistics.
However, there comes a difficulty wherein certain situations could present as consensual while actually not being so. For instance, if a male family member, say a brother-in-law or cousin or father, a sibling — has sexually exploited the minor and she gets pregnant, the family will want to cover it up 99% of the time. They will say that the pregnancy was due to a consensual relationship and request for an MTP without any report to the police.
Usually the child or young person does not have much agency here to express their consent or not, and will have to go along with the parent or guardian's wishes. On a rare occasion, some of them may have external support or are outspoken and just deeply upset by their situation and may disclose the reasons for the pregnancy, warranting a report to the police.
Otherwise, she ends up having to go back into the same abusive situation. We therefore have to think of how the authorities will evolve a protocol involving multiple sectors in the care continuum, to address such cases which may present as consensual but are actually not.
Many times, even when the abuser is not related, the family does not want to report, outraged as they are, because of the misplaced concerns of the future of the child, family honour and their deep mistrust of the criminal justice system — for good reason as is continuously being evidenced.
However, despite these possibilities we strongly agree that right to safe abortion takes precedence over anything else.
As an aside, I have a theory that if pregnancy doesn’t visibly manifest most people would not be bothered. A visible pregnancy of an unmarried girl acknowledges that she is a sexual being and has exercised her expression of sexuality, which goes completely against the widely held belief that girls should only have any notion of this identity within a marriage.
You need to also juxtapose the judgment against family arranged child marriages and those that are self arranged. Children whose marriages are arranged by the family, invariably to another family member, will not come into a hospital for an MTP, because the family wants the child to be born. Information about the child marriage only comes to light when they visit the hospital for delivery, and the case will then, ironically, get reported to the police.
The other scenario is if a young girl who is in a self arranged marriage or has been intimate with her partner, gets pregnant and comes in for an MTP and the guardian’s signature is needed to get an MTP. In these cases, the girl usually does not wish to report while the guardian does, putting doctors in a bind. But since both have to be in agreement not to report, doctors would have to abide by the judgment.
It is for these very reasons, interventions of support by various state schemes and programs as well need to be bolstered. The child protection services in the country are completely fragmented and they’re not able to deliver the services commiserate with what is required of them. It’s just not humanly possible.
For instance, a District Child Protection Unit (DCPU) has 12 personnel. In a city like Chennai — which informal data says has about 12 million people — we have just one DCPU handling multifarious issues. And in a district like Karur which has a total population of 10 lakh, there is one DCPU with similar strength.
And then we should not forget overzealous welfare authorities, the very ones who are supposed to have the child's best interests in mind, who like bounty hunters visit hospitals and other health settings looking for children who may have come for deliveries or MTPs in order to report them to the police. They don’t even spare young women who may be 18 and over at the time of MTP or delivery, which may have been done with family agreement. Their rationale is, she was sexually active before she turned 18 and must face the legal consequences. This judgment will come to their aid. The Tamil Nadu government had earlier this year, recognising this situation stated that any unmarried woman over 18 can avail of abortion services without an Accident Report being made. A report to the police is only to be made if it is a complaint of sexual assault or the girl is under 18. Now even that context will not arise.
In informal conversations with many young women who have come for deliveries or MTPs (and I strongly believe their voices need to be heard, to better inform policies and schemes which focus on them) most say that they did want the intimacy of a romantic relationship but certainly did not want to get pregnant. But in a situation where they are not even given prior information about menstruation, where do they go to access accurate information or services on birth control, even though the RKSK program which is the world’s largest adolescent health program, propounds it. The NHFS as well as other academic studies from Population Council and IIPS all clearly indicate the prevalence of sexual activity of young people
How real is the problem of unsafe abortions when it comes to minors?
We’ve had cases where people believe that consuming certain fruit, food or various concoctions will help in aborting foetuses. Resorting to unscientific and unsafe abortions, including going to quacks, could many times prove fatal. This is a widespread problem, but nobody really admits to it, so there are no real numbers. Only further research will give an idea.
While the present judgment specifically mentions that what is said applies only in the case of Medical Termination of Pregnancy Act, do you think this can be used to decriminalise consensual sexual activity of minors under POCSO? And how important is it to do that?
I don't think the judgment will go so far as to push the legislature to make the much required amendments. But I love that the judgment basically says that teenagers are sexually active, and talks about the need for sexuality education. There is no alternative to sexuality education, and we need to seize the moment, so to speak. Children need to be given information about reproductive health and sexuality, because otherwise they’re getting their information from pornography, which is unrealistic and contrived. Banning it is like trying to plug a leaking dyke, and just lulls responsible adults into a false state of assurance.
We have seen many cases of young men who get married and feel the pressure to perform during the “first night”, and the woman ends up in the hospital the next day. Boys are expected to know, and girls are expected to be passive partners.
And sexuality education should not be the job of the education departments — it should be done by the health departments. But we have to guard against this being just a presentation of clinical facts; it should also discuss, engagingly, the accompanying psychosexual development. What we have right now is ‘Red Ribbon Clubs’ in schools, where, instead of celebrating sexuality as part of identity, we’re talking about sexuality through the disease lens. Another source of information is the media which is usually reporting on sexual violence. And sadly, because of the swirling misinformation, many young people don't even know that sexual intimacy and pregnancy are connected. Strange as that may sound!
In the UK, they call sexuality education 'Personal Safety Health Education' — PSHE. Earlier, it used to be done by teachers. Then they realised that this kind of information dissemination requires a different skillset. So now they have separate PSHE educators who are trained to do this, and are not part of the school system. In fact, understanding the pornography/adult entertainment industry is included in the PSHE syllabus.
They don’t have biology teachers doubling up as sexuality educators, like we often have in India. To start with, how many of us have been taught the reproductive system in the classroom at High School, instead of being asked to go home and read the chapters? I also don’t think it is fair that we expect teachers who have been hired for their subject expertise and trained with skills to impart that subject knowledge, suddenly be confronted with taking on the role of sexuality educators. They themselves could be diffident or ignorant of sexuality.
And neither should they be counsellors — because that shows an ignorance of the role of counsellors, who have a different orientation and should be really having a full caseload, and can't suddenly shift gears and adjust to the role of a sexuality educator. It's like us in Tulir, who are asked to be on various sexual harassment committees, because we work on child sexual abuse! We do have the belief and understanding of the nuances of harassment, but it's a perfect example of stretching the rubber band to fit the parcel.
Finally, I would like to say parenting is not easy. It's the best kept public secret. Instead of being an ostrich and not fulfilling our obligations and duties to children and young people, parents need to live up to their responsibilities and start talking about sexuality. They have far more teachable moments available than anyone else. Kids should not suffer because of parental and societal discomfort.
How many parents have talked to their kids, especially boys, in our milieu about consent? And there are some fabulous resources now available which assist in starting this conversation, which may, perhaps, be awkward for many.
How many parents understand their child through the kaleidoscopeof diverse sexuality and gender? How many parents talk to their daughters about choices, without marriage being the fulcrum around which those choices have to be made? Do parents even know that because of their attitudes and practices, many children and young people are forced to lead double lives, and many others are retarded from exploring ways of living up to their optimal potential?