Within three days of the lawyers moving the petition in the Karnataka High Court, the abortion is usually carried out in a safe and sterilized manner.

Beyond paperwork How medico-legal teams ensure a minor rape survivor gets an abortion
news Sexual assault Tuesday, May 22, 2018 - 12:48

13-year-old Anitha* could not understand why her period had stopped. Or why she occasionally got cramps so painful that she could only lie down and rock herself to keep the pain at bay.

A month went by and when she didn’t get her period again, she took her mother into confidence. A distant relative had raped Anitha repeatedly over 6 months and had threatened to kill her if she told anyone anything. Fearing for her life, Anitha had kept quiet.

Her mother rushed her to the government hospital in Kolar, where they confirmed Anitha was pregnant. Her mother filed an FIR, and Anitha was taken to Kolar’s Children’s Home, where more tests were carried out on her. There, it was discovered that she was 23 weeks pregnant.

According to the 1971 Medical Termination of Pregnancy Act, it is legally permissible for a medical practitioner to medically terminate a pregnancy within a period of 20 weeks.

In such a case, where a minor is pregnant due to rape and is seeking to terminate the pregnancy after 20 weeks, the victim can move the court.

How the law works

“Here is where we step in,” says Aarti Mundkur, a Bengaluru-based advocate who specifically works on cases involving children and their rights. “We heard about Anitha and jumped into action to help her terminate her pregnancy.”

Aarti and Sahana Basavapatna, another advocate, have partnered to work on several such cases.

“The first thing we do is to meet the child. In Anitha’s case, we asked her to come here from Kolar with her mother to save time. There have been cases where we have gone to the victim too,” says Aarti.

It is important to take the child into confidence and ask her if she wants the abortion. The law mandates that parents give their consent for the procedure, but these two lawyers take it a step further.

“In some cases, the children could say they want to go ahead with the pregnancy. We have not had any cases like this until now. But consent is of utmost importance here. We are not pro-abortion lawyers. We merely want to ensure the minor survivor of sexual assault, who wants an abortion, gets one. We explain each procedure to the child, and get her go-ahead before we proceed with the case,” says Sahana.

The lawyers then file a writ petition in the High Court on behalf of the minor, invoking the 1971 Act, which explicitly states that an abortion can be done if the minor was sexually assaulted.

“And so far the courts have risen to the occasion magnificently,” says Aarti. The High Court schedule is immediately cleared in order to hear the case on a priority basis.

“There have been times where we have submitted the petition at 10 am and asked for the hearing to be scheduled at 2 pm. And the court ensures it happens. No matter how many cases it is scheduled to hear that day, it will make sure that this particular matter is heard at 2 pm,” adds Aarti.

The first order the court passes is to set-up a medical board to examine the survivor. For this, Vani Vilas Hospital in Bengaluru has set-up a one-stop centre.

Setting up a medical board

“Survivors need to be examined by doctors from various departments - Forensic, Radiology, Paediatrics, Gynaecology and Psychiatry - and a number of tests need to be carried out to ascertain if the survivor can undergo an abortion. The patient’s health and well-being has to be factored in while deciding this. For this, we have set-up a one-stop centre,” says Dr Savitha C, Professor and Head of Department of OB-G, Vani Vilas Hospital.

The campus of the sprawling British-era hospital is confusing at best - with labyrinthine corridors, cramped rooms and large courtyards.

Since most cases handled thus far has seen the survivors come to Bengaluru from outside the city, the hospital, in a bid to put the patient at ease, has doctors come to this one-stop centre. This way, the survivor need not move from department to department, looking for doctors to carry out the tests.

“We maintain the utmost confidentiality of the patients. Only for scanning, age estimation and X-ray, they will have to go to the Radiology department. Otherwise, all the tests are carried out here,” adds Dr Savita.

Once the tests are done, the doctors send a report to the court in a sealed envelope, which details all the risks associated with the medical termination of the pregnancy and if the survivor can undergo the abortion. “The one-stop centre works fast and the report is delivered to the court, within a day-and-a-half. Based on the report, a judgement can be delivered within a few hours,” says Aarti.

Everything from the lawyers moving the court to the medical board being set-up, to the tests being carried out and the final verdict - is all done in a matter of a few days, “three days at most,” says Sahana.

Learning on the go

But it hasn’t always been this way. There is a learning curve associated with this.

“The very first case I worked on - of a minor victim becoming pregnant as a result of rape - was in 2015, and I couldn’t find a precedent for at least 13 years previously. At that time, we were all unsure of the exact process, but the Supreme Court had ruled in 2012-13 that to determine if an abortion can be done for a victim of rape, a medical board would need to be set up. We have followed that since,” says Aarti.

In another case the two advocates worked on previously, when the court ordered a medical board be set-up, it didn’t specify that the report should say whether or not the abortion could be carried out.

“So they gave us the report, but it didn’t tell us whether we could do the abortion. The case was then rejected in the HC due to a lack of information. We had to move the Supreme Court for this case in particular,” says Sahana.

Showing care and compassion

Both lawyers are quick to stress that in all the cases they have handled until now, the courts and the doctors have shown utmost empathy for the victim.

“Understanding the magnitude of the situation, the doctors immediately assign their duties to others and come to the one-stop centre to do the tests within the same day they get the order from the court to set-up the medical board. There have also been cases when the doctors have worked on government holidays to ensure all the tests are done in a day or two,” says Sahana.

The psychiatric tests carried out on the survivor play a huge role here. Dr Chandrashekar, Professor and Head of Department of Psychiatry at the Bengaluru Medical College and Research Institute, has been associated with the one-stop centre since its inception.

“When a child is sexually abused, the perpetrator is in a position of power, where he can control the child,” he explains. “When we do a psychological assessment, we make it a point to assess how much of a control was exerted by the offender on the vulnerable child.”

And his job doesn’t end with the medical report: “We try doing follow-up tests on the child for six months after the abortion. This way we can make sure she is recovering. It's not easy to convice the survivor's to come back for the follow-up tests, but we try our best.”

Moreover, once the verdict for the abortion comes, NGOs like Enfold in Bengaluru step in and ensure the child is in safe hands as the procedure is carried out and after.

“It boils down to the little things we tend to overlook,” says Aarti. “Is the child comfortable? Is there any particular kind of food she’s craving? She’s homesick and scared, her body is undergoing so many changes at once, the procedure itself can be painful...so here, an NGO that works with children steps in and ensures the child is comfortable.”

With so many different arms coming together to ensure the abortion for the underage survivor of sexual abuse is carried out in a safe manner, without complications is truly commendable.

“We are just one cog in the machine,” says Aarti. “We move the court and from thereon, all the other parts of the machine work together to ensure the minor survivor gets that abortion done. Getting justice for the sexual assault is a whole other matter, but this is the least we can do to help her and ensure it is a safe abortion."

*Names changed to protect the privacy of the survivor

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