The Medical Termination of Pregnancy (MTP) Act and The Protection of Children from Sexual Offences Act (POCSO Act) were enacted, prima facie, aiming to safeguard the sexual and reproductive rights and well-being of individuals, particularly women and children, in India.
The MTP Act primarily deals with regulating abortions, providing a legal framework for the termination of pregnancies under certain conditions and safeguarding the health of the pregnant persons. Abortions under this act can be approved and performed by registered medical practitioners up to 24 weeks of gestation. While our country is in a better off position than many first-world countries like the USA, in terms of abortion laws, looking into the nuances of this act, many provisions stand inconsistent.
The inception of the act itself stands on the grounds of controlling population, and not granting legal right to bodily autonomy to women. Beyond 24 weeks, abortions are permitted only in cases where it is a danger to the life of the pregnant person or the foetus. Factors like changes in socio-economic conditions, marital status or career paths are driven out of the equation. With regards to provisions for adolescents, this act mandates minors can terminate their pregnancy after getting consent from their guardian.
Section 19 of the POCSO Act mandates that any person who “has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed” shall report to the special juvenile police unit or the local police. Criminal actions can be taken in the absence of such reporting by the medical practitioner.
One provision to refine these laws is the Right to Privacy. The MTP Act provides strict confidentiality provisions under Section 5(3), further strengthened by the judgement of Justice K.S Puttaswamy v. Union of India that encompasses reproductive autonomy in the guaranteed right to privacy.
This contradicts Section 19 of the POCSO Act as mentioned above. An offence under the act also constitutes consensual sex with an adolescent sex. The medical practitioner is bound by law to report her as a survivor of sexual assault. Even if the rationale is to not give any immunity in cases of child sexual offences, this poses extremely problematic in various facets.
The social stigma and shame attached to sexual intercourse outside of marriage, almost as a perverted act, especially at a “young” age, acts as a consistent pervasive barrier for adolescent girls to seek safe reproductive health care. There is also a socio-economic factor playing a tremendous role in how abortions are perceived.
The shame attached to visiting a gynaecologist is apparent in rural areas where pregnant persons have to very covertly and secretively commute to the city for a pregnancy test. This pattern is not absent in urban areas either. The mandatory reporting of even consensual sex acts as a deterrent to authorised medical practitioners for termination procedures and encourages them to resort to clandestine service providers, which can be susceptible to health repercussions or even a threat to life.
The requirement for a guardian’s consent for abortions may not be safe or practical for a child, in every situation. In cases of sexual abuse and rape, the mandatory reporting and guardian’s consent may not be coming out of self-will from the victims as it poses a threat, in case the abuser themselves are family members or the legal guardian.
In cases of emotionally or physically abusive households, the child may find herself exposed to violence and further threats, even to life. Moreover, adolescents fear ostracization from their own families if they find out she is pregnant. Adolescents who are indulged in consensual sexual activities, also fear their partners being charged with criminal charges under the POCSO act, even if the partner is a minor if they avail for abortions by an authorised service provider.
This brings us to the topic of infantilising adolescents, and diminishing their sexual desires. The POCSO act was enacted to protect minors from sexual offences, but it is also crucial to distinguish what qualifies as an “offence” or a violation towards them.
Adolescents and children should not be looked at as defenceless dependents, but rather as individuals with rights and provisions to protect those rights. The adolescence period in the developmental stage is marked by cognitive and sexual development with a natural and integral increase in sexual desires. There is a dialectical relationship between the stigmatization of their sexual desires and the laws regarding the age of consent and legality of sexual activity.
The amalgamation of the MTP Act and the POCSO Act, in this manner, contributes to the perception that adolescent sexual desire should not be acted upon. The Act emphasises that the consent of a child is irrelevant and any sexual intercourse will account as a sexual offence. However, if the minor has indulged in a sexual activity willingly with another minor or an adult close to her age, it should not qualify to face criminal charges and should be validated as an appropriate sexual relationship.
Criminalising and policing adolescents’ sexual activities deprives them of their sexual autonomy and hinders in availing of safe abortion methods. The aim of the act to protect minors then stands defeated if their sexual freedom is taken away and they are subject to the taboo and stigma, and succumb to possibly unsafe clandestine methods. Along with rights, the control over their agency should also lie with the adolescents.
The Human Rights Council has called upon states to respect, protect, and fulfil women and adolescent girls' human rights to have control over their sexual and reproductive health by implementing laws that respect their bodily autonomy and agency.
However, the existing laws should apply after credible consultation, to supposed consent which could be influenced and coerced by much older adults. This amounts to a predatory violation of a minor’s body and mind. It is crucial to under the psychology of such relationships to assess abuse and coerced or manipulated consent. Enacting the POCSO Act, even along with the MTP Act should involve psychologists, psychiatrists or counsellors for consultation, rather than purely being through the lens of the Registered Medical Practitioner.
The current laws do not differentiate between consensual and non-consensual sexual intercourse. This can encourage not understanding and respecting the concept of agency and consent. There is a need for holistic, more nuanced, comprehensible laws for safeguarding the rights of adolescents sexual rights and rights of pregnant adolescents, and preventing them from forcefully seeking abortions from unsafe and unlicensed professionals.
Accessibility is a primary factor for any medical and health care services and must be the same for abortion. Accessibility does not only derive from financial strata but also the social attitudes attached to it. The laws should understand the cognitive and sexual development of minors, without solely adhering to objective demarcation and validating the sexuality of those who attain the age of consent.
There must be a more approachable, sensitive, and empathetic legal structure for adolescents and children to give them the same platform as any individual in the country.
