Case Title: X v. Principal Secretary Health and Family Welfare Department Govt of NCT of Delhi & Ors.
On September 20, the Delhi High Court issued a directive ordering the Centre to make arrangements for the termination of a minor's almost 20-week pregnancy at the All India Institute of Medical Sciences.
The Medical Termination of Pregnancy Act (MTP) allows doctors to terminate a pregnancy that is less than 24 weeks old without a court order, provided that all legal requirements are followed. However, in the instance of the 16-year-old, the doctors declined to comply with the family's request.
FACTS OF THE CASE:
The mother of the 16-year-old said in her petition that neither a public nor a private hospital would consent to perform the abortion since the family had not reported the situation to the authorities. On September 9, when the youngster complained of abdominal pain and was taken to the doctor, the family learned about the pregnancy. The mom requested in court that her daughter be let to end her pregnancy without informing the police since it "arose out of consenting & intimate connection." The petitioner added that she has four other children and is the child's only legal guardian. The petition claims that the minor's mother works as a domestic helper and earns a meagre living.
POCSO ACT
Why wouldn't the physicians end the pregnancy without calling the cops first? In legal terms, a minor's permission is irrelevant, and any sexual conduct committed against a minor is an offence.
According to Section 19 of the Protection of Children from Sexual Offences (POCSO) Act of 2012, everyone, including the kid, must go to the police if they have reason to believe that an offence against the law has been committed or "has the knowledge" that one has already been committed. The physicians are required by law to file a report on the pregnancy of a minor, the division bench of the Delhi High Court stated in an interim ruling in the case of the girl on September 20.
The statute clearly states that "no individual shall suffer any liability, whether civil or criminal, for supplying the information in good faith" to the Special Juvenile Unit or the local police.
However, Section 21 of the POCSO Act provides that a person who fails to report the offence may be sentenced to a maximum of six months in jail, a fine, or both. Even if the kid is likewise compelled to report the crime to the authorities, they are exempt from the penalties for doing so.
An issue involving a pregnancy of fewer than 20 weeks need not have gone to court, according to advocate Sneha Mukherjee, who has represented numerous women in cases under the MTP Act, but she emphasised that the doctor was mandated to report the case. "POCSO doesn't approach it from a perspective of consent. Underage consent is not accepted by the law before the age of 18. It is statutory rape, Mukherjee said, adding that the doctor probably didn't want to become involved in a police investigation. However, physicians need to have reported it on their own since the law requires them to do so."
Mukherjee continued, "The views of the family are irrelevant. Even if it may be voluntary and the family may not wish to pursue criminal charges, the law forbids it." Regarding the petitioner's request for a pregnancy abortion, she stated: "She is sixteen years old. She should undoubtedly be permitted. Her body isn't prepared to become pregnant."
Only after the offence has been reported to the POCSO Act and Rules discuss the medical assistance and care of children.
MTP ACT & 2021 RULES
The 1971 Act, which underwent its most recent revision in 2021, authorises registered medical professionals to terminate certain pregnancies. A pregnancy that is less than 20 weeks long can be ended by a single doctor, but if it is between 20 and 24 weeks long, two physicians must decide whether to allow the termination or not. The conditions include whether the expectant woman's life or her bodily or mental health would be seriously harmed by continuing the pregnancy. Abortion is also appropriate if the unborn child is born with any major physical or mental defect.
Only a specific group of women are permitted to terminate a pregnancy between 20 and 24 weeks under the regulations. On the advice of two physicians, a minor's pregnancy may be terminated up to 24 weeks into it. Relevantly, the legislation states that a minor's pregnancy can only be ended with her guardian's written agreement. The Act specifically states that in cases where pregnancy is believed to have been brought on by rape, the suffering brought on by the pregnancy would be taken into consideration as a "severe impairment to the pregnant woman's mental health."
Only a medical board made up of a gynaecologist, paediatrician, radiologist or sonologist, and other members can decide whether to terminate a pregnancy after 24 weeks if it is determined that there are any significant fetal abnormalities. This decision will be made after careful consideration of all relevant factors, including the woman's safety.
VIRES CHALLENGE
In a petition filed with the Delhi High Court, the petitioner requests that Section 3 of the MTP Act be amended to permit married or unmarried minor girls between the ages of 16 and 18 to end an unintended pregnancy that resulted from a consensual relationship without informing the police as required by Section 19 (1) of the POCSO Act.
Speaking to Casemine, Advocate Amit Mishra stated that when a doctor in such circumstances declines to end the pregnancy, the families are compelled to turn to quacks or unprofessional individuals. Mishra is representing the mother of the minor in the case. Their health is seriously at risk, according to Mishra.
Mishra also said that Article 21's essential rights to privacy, physical integrity, reproductive freedom, and personal autonomy are all violated by Section 19 (1) POCSO. He said, "All are being violated."
In light of the rise in rape cases involving teenagers, the National Human Rights Commission requested a study in 2018 to determine whether the legal age of consent for consensual sex should be lowered from 18 to 16 years.
Regarding the need to file criminal charges in these situations, Mishra claimed that the law may be changed to account for situations in which the girl is older than 16 and the guy is also in her age range.
Mishra alluded to Section 5A of the MTP Act and stated that it requires the doctor to respect the privacy of the pregnant lady in response to doctors refusing to terminate the pregnancy due to non-reporting to the police. He declared that Section 19 (1) of the POCSO and Section 5A of the MTP appear to be at odds with one another. A doctor may disclose information on a woman whose pregnancy has been terminated "to a person authorised by any law for the time being in effect" under Section 5A. Although there has been much discussion on the question, Mukherjee argued that one must take the nature of the offence into account. “How are you going to prove consent? If there is a case in court tomorrow involving a girl who is 16 or 17 years old and a guy (her senior) and the kid is pressured into declaring that it was consensual—a youngster may easily be persuaded—will that statement be sufficient?”
"These concerns have arisen because teens are having sex, oftentimes unprotected intercourse," It is an extremely challenging problem. In something so delicate, you want to find the right balance. The road to success is really arduous,” Mukherjee added.