Delhi: A few days after discovering she is pregnant, Rekha*, along with her mother, went to Dr Samir R Pradhan, a gynaecologist in Mumbai. She wanted an abortion. The doctor tried to determine her age through her Aadhaar card but it mentioned only her year of birth.
Her school documents revealed that she's a couple of months short of 18 - anything less than that age means there can be no consent involved in sex. Or, that's what the law says. "An act of sex with a woman below 18 years is considered to be rape and we are bound by the law to inform the authorities," Dr Pradhan says.
The Mumbai gynaecologist admitted Rekha and, meanwhile, informed the police. After recording her statement, the sub-inspector told the doctor that she would have to take Rekha and her mother to a police station in the neighbouring town in Thane, where the alleged crime occurred.
Dr Pradhan tried reasoning with the police citing his previous experiences in cases where the POCSO Act was applicable, but the officer was insistent and assured the doctor that it's only a matter of 'few hours' after which he would be allowed to perform MTP (Medical Termination of Pregnancy).
However, things didn't go as planned for Rekha and her mother. Hours of interrogation and statements later, Rekha* was taken to Thane Civil Hospital. It was not until 10 days later that Rekha finally got an abortion. Her boyfriend was arrested.
Two months later, Dr Pradhan was called to the police station to record his statement. "With stringent laws like these, even the doctors who are motivated to help would get demotivated. The teenaged girls will have no choice but to go to quacks resulting in an increase in septic abortions and mortalities. It will defeat the purpose of MTP Act," says Dr Pradhan.
Doctors across the country claim that they are facing a major dilemma when it comes to treating a girl below the age of 18. "We can't deny safe abortion because that's criminal. At the same time, we can be arrested if we don't inform the police," says Dr Kamla Ram, a gynaecologist with Parivar Seva Sanstha, an NGO that aims to provide affordable reproductive health services in the country.
The POCSO Act treats all pregnant minors as rape survivors, and mandates the medical providers to report these pregnancies to the police.
This is in direct conflict with the confidentiality clause under the MTP Act.
Too often, doctors say, the families don't want to report when their teenaged daughters are pregnant for multiple reasons - their daughter was married off before the legal age, or that they know it was consensual, or that the man in question is known to them. However, bound by the rules, when the doctors inform the accompanying guardian about the compulsory police report, they flee. "We don't know where they are going but we know that they get an abortion some way or the other," says Dr Ram.
More often than not, these abortions are not safe.
Unsafe Abortions are Already Common
Though abortion has been legal in India for the last 47 years, according to the WHO, about 10 women die every day due to unsafe abortions. In fact, unsafe abortion is the third leading cause of maternal deaths in India.
A study published in Lancet in 2017 showed that an estimated 15.6 million abortions were performed in India in 2015. This translates to an abortion rate of 47 per 1,000 women aged 15–49. The study conducted jointly by researchers at the International Institute for Population Sciences (IIPS), Mumbai; the Population Council, New Delhi; and the New York-based Guttmacher Institute found that slightly fewer than one in four abortions are provided in healthcare centers.
The vast majority of abortions (81%) were achieved using medication abortion (which, in India, is commonly referred to as medical methods of abortion, or MMA) that was obtained either from a health facility or another source. Fourteen per cent of abortions were performed surgically in health facilities, and the remaining 5 per cent were performed outside of health facilities using other, typically unsafe, methods.
The conflict of the POCSO and the MTP Act is making doctors hesitant to provide services to girls under-18 due to fear of prosecution, and teenaged girls apprehensive of seeking abortion services from legal providers, in turn, forcing them to seek unsafe abortion measures.
While the MTP Act was adopted nearly five decades ago with the aim of “providing for the termination of certain pregnancies by registered medical practitioners," every year more and more women are knocking the court's door because they are being refused abortions even if their pregnancy does not exceed the ceiling of 20 weeks.
But for a country this big, it is also not very difficult to get 'illegal' abortions through the number of 'non-formal' services available readily. Besides the existing stigma, the complication due to the POCSO Act makes it very difficult for teenagers to access safe abortion methods. It's finally a choice between going through the hassle of the police report, or unsafe abortion, or worse still, being forced to give birth.
The Trouble With The Legal Age of Consent
Rekha* had told the investigating officers that once she becomes an adult, she is going to marry her boyfriend who was arrested following her pregnancy. She was exhausted and frustrated with the burden of investigations when she didn't even choose to file a complaint, says Dr Pradhan.
In the Bhoi Kunjalben v. State (2017) case, the petitioner, a minor, approached the Gujarat High Court seeking permission for termination of her pregnancy. When the petition was filed, the gestational age of the pregnancy was 24 weeks. It was at 27 weeks when the case was decided. On examining the petition, the court realised that the petition was contrary to the teenaged girl's choice and it appeared that her parents had filed a case under the POCSO Act as she had eloped with a man and got pregnant. The court emphasised the need for consent and the difference between a wanted and unwanted pregnancy.
"The law does not differentiate between consent or no consent. Even for married couples, there's no exception. If the girl is below 18, the police have to be reported," says Dr Nozer Sheriar. "The autonomy of young people to be sexually active is taken away," the doctor, based out of Mumbai, remarked.
Although the legal age of marriage is 18, the United Nations pegs the number of child brides in India at a staggering 15 million. Girls are forced into early marriage as they are considered a financial burden, or a cause for dishonour to the family if they experience sexual violence.
It wasn't surprising when a 2014 report called 'Abortion in India: A Literature Review' noted that awareness of sexual and reproductive health matters were inadequate among adolescents: Fewer than half of the young women who were interviewed didn't know they could get pregnant the first time they have sex.
A lot of them didn't have any knowledge of how to use at least one modern reversible method of contraception, and only six in 10 were aware that 18 is the minimum legal age of marriage for women.
According to the 2015-16 National Family Health Survey, 8.6 million girls in the age group of 15-19 years are married before 18 years, and more than half of them (4.5 million) have become mothers during adolescence. Ten million adolescent girls who wish to avoid pregnancy are not able to access contraceptives.
The POCSO Act, although a very important one, is now turning out to be a hurdle for these girls seeking safe abortions, fundamental to their freedom and right to live with dignity. How do they access safe methods of abortion without the fear of their husbands being put behind bars?
Why is the POCSO Act Detrimental?
Vinoj Manning, the Chief Executive Officer of the Ipas Development Foundation (IDF) in India, points out that there is a lack of clarity among medical practitioners when it comes to the POCSO Act.
Are doctors supposed to inform the police before the abortion procedure? What happens if they first treat the patient? Are they supposed to record the evidence material? What happens if they don't?
The biggest question, though, is what should doctors do when the family refuses to report? Do they deny treatment? Multiple doctors News18.com spoke to confirmed that they have at some point refused treatment because the family of the patient did not want to speak to the police.
They also agreed that this is likely to result in unsafe abortions among teenagers.
Dr Pradhan feels that there should be a point-wise guideline to police and healthcare providers with respect to the POCSO Act and the MTP Act. He said the law should be such that the culprits are punished but teenage couples engaging in consensual, unprotected sex are not subjected to undue harassment and forced to get abortion illegally.
Although some of the cases passed smoothly as the police filed a 'zero FIR' complaint in Dr Pradhan's experiences, doctors say that too often the cases are also used as a tactic for harassment and extortion. "So even if families report, they often regret their decision," says Dr Nozer Sheriar.
The legal age of consent was 10 years in the Indian Penal Code of 1860. This was increased to 12 years through an amendment in 1891. In 2013, the age of consent was raised from 16 to 18 without amending the IPC but by defining a child as below 18 in the POCSO Act.
"On one side of this debate is the state's zeal to protect young girls from the risk of child marriage, young pregnancy and sexual exploitation. On the other end, it is a question of rights related to choice and decriminalisation of sexual activities of girls," said child rights activist and lawyer Anant Kumar Asthana.
Stigma Makes it Worse
The National Crime Records Bureau data reveals that about half of the POCSO Act cases fall in the category of 16-18 years age group. The 2017 NCRB report that was released Monday showed the number of POCSO cases in that age group is 8,286 as compared to 17,780 cases overall.
A few child rights groups have been arguing that the age of consent be lowered to 16, because, they say, criminalising young people for sexual acts that are consensual cannot protect them.
"The shift from 16 to 18 (years of age) has put people in consensual relationships in that age bracket in a very difficult position. There's a strong need to review this," said VS Chandrashekar, CEO at Foundation for Reproductive Health Services India. "Legal literacy among doctors is very important otherwise it may have serious consequences," he added.
But will only changing the age of consent prevent young pregnant women from risking their lives?
It's not uncommon for clueless teenagers to buy medicines over the counter, without any doctors' advice or locating what doctors call a 'shady' clinic to get abortions. They don't want to be seen by someone they know. And that itself poses a huge danger to their health. It can lead to infection, haemorrhaging and injury to internal organs. It often leads to death.
The stigma is so high that 34 per cent women say they will stop being friends with a woman who underwent an abortion, revealed an internal survey data of IDF 2018. Meanwhile, 59 per cent women feel that abortion is equal to committing a sin.
The MTP Act, 1971, states that pregnancies can be terminated under certain conditions — such as risk to the life of a pregnant woman or if it would cause grave injury to her physical and mental health — and when provided by a registered medical practitioner at a registered medical facility.
But it still doesn't make a case for choice. In fact, often, medical practitioners also are hesitant to perform abortions unless the child or the woman's health is at stake.
Recently, the Ministry of Health and Family Welfare told the Supreme Court that a pregnant woman’s right to abort is not “absolute” in response to a petition filed by Dr Nikhil Datar, who sought to raise the time period for terminating pregnancy from the current cap of 20 weeks to 26 weeks.
The health ministry has promised to address all concerns in the MTP (Amendment) Bill, 2019 which is currently pending with the law ministry for vetting.