India Supreme Court Denies Abortion To Rape Survivor Living With HIV

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(PRESS RELEASE) This week the Supreme Court of India denied a rape survivor living with HIV from seeking an abortion.

In its ruling, the Supreme Court bench rejected the abortion plea due to her being 26 weeks pregnant and as a result of the recommendation it received from a court-appointed medical panel that indicated that an abortion at this stage of pregnancy posed a risk to the lives of the woman and the fetus. The woman learned of her pregnancy and HIV status in January 2017 and initially requested an abortion while at 17 weeks of pregnancy. After significant delays, both the government hospital and the high court in Bihar denied her request for legal abortion services, resulting in her appeal to the Supreme Court.

The World Health Organization and colleges of obstetricians and gynecologists globally have recognized that second trimester abortions are “an important component of comprehensive women’s health care” and affirmed that abortions past 20 weeks provided in accordance with medical guidelines are safer than the risks women face from unsafe abortions.

Said Payal Shah, senior counsel for Asia at the Center for Reproductive Rights:

“Absolutely no woman should be forced to go to court just to get the reproductive health services she needs.

“And yet, at every turn, the courts and the medical community failed this woman. Even while recognizing that previous denials of abortion services violated this woman’s dignity, the Supreme Court still refused to guarantee her proper care.

India’s unnecessary and burdensome requirements—both in law and improper informal demands by providers—too often turn a blind eye to women’s critical health care needs.

“This case clearly demonstrates the urgent need for India to immediately reform its abortion laws and issue guidelines to ensure every woman’s decision to end a pregnancy is respected.”

When the petitioner in this case went to the government hospital for an abortion, the hospital required her to provide the consent of her husband and father, despite the fact that there is no such requirement under the law and her pregnancy had resulted from rape. Even after her father consented to the abortion, the hospital did not end the pregnancy. She later appealed to the high court of Bihar, which denied her request.  

In its decision, the Supreme Court asked the Bihar government, where the woman resides, to provide monetary compensation for the delays they caused, which ultimately led to her being denied an abortion even though she had requested it within the legal limit. The next court hearing will be on August 9 to determine the compensation with Bihar authorities.

This case underscores the urgent need for the government to reform the Medical Termination of Pregnancy Act to permit abortion past 20 weeks, as requested in a petition currently pending before the Supreme Court of India as well as in proposed amendments to the abortion law.

Under the Medical Termination of Pregnancy Act, 1971 abortion is only legal within 20 weeks of pregnancy—including in cases of grave injury to the woman’s physical or mental health, rape, incest, fetal impairment and contraceptive failure—or any time during a pregnancy where it is “immediately necessary” to save the life of a pregnant woman. Decades later, over half of the more than 6 million abortions that take place each year are unsafe according to the Abortion Assessment Project-India.