A division bench of Chief Justice J.S. Khehar and Justice D.Y. Chandrachud denied the plea after a medical board report, set up by Chandigarh's Postgraduate Institute of Medical Education and Research on the court's orders, warned that an abortion would risk the girl's life.
Taking the report into consideration, the bench said: "Pregnancy is 32 weeks old. It's a grave risk for 10-year-old girl. It's not an early pregnancy. In view of the recommendation made by medical board, we are satisfied it would nor be in the interest of girl and neither to fetus who is 32 weeks old. We decline to terminate pregnancy."
The court had ordered a medical board be set up to examine the girl and ascertain the risk to her life if the court was to allow an abortion.
The order came on a public-interest litigation by advocate Alok Srivastava who moved the top court after a plea to medically terminate the pregnancy was refused by a district court in Chandigarh July 18.
Srivastava moved the Supreme Court after the appeal to abort the then 26-week fetus was rejected by a lower court, despite warnings that the child's body was not ready for childbirth.
The girl's pregnancy was only discovered recently after her parents took her to hospital when she complained of stomach pain. They discovered that the girl had been repeatedly raped by her uncle over seven months.
The apex court, which refused to permit an abortion due to the risk it posed to the child, said that "girl child should be given due medical care."
It also said that it would be open to allowing doctors to evaluate the best method of delivering the baby.
Srivastava's plea has also sought a framing of guidelines for setting up medical boards in every district for an expeditious examination of cases necessitating abortions in incidents of child rape victims.
Noting that numerous similar cases are appearing before the court, the bench asked the Central government to have a permanent medical board in all states so that as a first step, a victim can be taken there.
The petitioner has also sought an amendment to Section 3 of the Medical Termination of Pregnancy Act, 1971, which prohibits termination of pregnancy beyond 20 weeks.
The top court had July 3 allowed a Kolkata woman who was 26 weeks pregnant to abort the foetus, which was suffering from serious abnormalities, according to a report from the city's premier SSKM Hospital.
How safe is it for a 10-year old to have a baby?
The lawyer representing the girl in the court said that the pelvic bones and the C-section procedure would be unsafe for the girl.
But the court ruled against the girls request for an abortion.
CJI further asked the centre to form a board of medical experts to examine such individual cases so that sc does not deal with these cases directly and also them to set up appropriate legislative mechanism in the states.
MTP ACT needs to be changed
With the Medical Termination of Pregnancy (MTP) Act coming into effect in 1972, India conveyed a strong message that it cared for the health of pregnant women who wanted to safely terminate their pregnancies. Yet, even four decades later, many women are still unaware that abortion is legal. Even access to safe abortion centres is severely restricted, especially in rural areas. As a result, there is a great mismatch between the number of abortion seekers and MTP-certified providers and centres.
According to a 2008 study in Contraception journal, nearly three-quarters of abortion-certified facilities are in the private sector. Add to this the stigma and discrimination that women seeking abortion face, and it is not surprising that a large number of women still turn to unskilled providers to perform abortions using unsafe methods in unsuitable settings. In 2010-11, over six lakh abortions took place in government-approved institutions. The number of unsafe abortions taking place every year is not known. According to a 2008 WHO report, about two thirds of all abortions that take place in the country are outside authorised health facilities. As a result, abortions cause an estimated eight per cent of maternal deaths in India, a majority of which are due to unsafe procedures according to the Registrar General of India's data.
To complicate the situation further, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 meant to prevent sex determination to avert female foeticide can work at odds with the MTP Act. It cannot be denied that selective abortion of girls has been increasing in India.
As per 2011 census data, the sex ratio of girls per 1,000 boys dropped from 927 to 914 during 2001-2010, and from 945 to 927 during 1991-2000. Yet, a long-lasting solution can be achieved only by bringing about a cultural change and not by clamping down on abortion services and drug availability. A holistic approach is needed that will not lead to more women seeking out unsafe abortion providers, resulting in an increase in maternal deaths.
The Protection of Children from Sexual Offences Act, 2012 and the Criminal Law Amendment Act, 2013 have also made matters worse for minors seeking abortion services. Even if minors indulge in consensual sex, the resultant pregnancy is presumed to be the result of rape and doctors may feel obliged to inform the authorities. While the 2012 and 2013 Acts have gone to great lengths to protect the interests of women and minors, these laws may unwittingly force minors to seek the services of untrained providers, thus putting their life in jeopardy. Reducing unsafe abortions will remain a distant dream if different Acts work at cross purposes.