New Delhi: Two years ago, in August 2017, the Supreme Court refused to grant permission to a 10-year-old school-going rape survivor from Chandigarh to abort her 32-week-old foetus. The apex court relied on a medical board report, which warned that abortion would risk the girl’s life.
This despite the girl having told the court that her body was not ready for childbirth. She was forced to deliver, giving birth to a baby girl soon after.
In contrast, the Delhi High Court last year allowed a 16-year-old rape survivor, who was 22 weeks pregnant, to terminate her pregnancy, citing the stress it had caused her.
The two cases highlight the grim reality of our country where even though abortion has been legal for the past 48 years, it has its riders — it is yet to become a woman’s right based on her reproductive choices, because if a pregnancy exceeds 20 weeks, abortion requires legal intervention.
The law
The Medical Termination Of Pregnancy (MTP) Act, 1971, allows a registered medical provider to provide abortion services to a woman whose pregnancy does not exceed 12 weeks, if the provider has formed a “good faith opinion” that the continuation of pregnancy would involve a risk to the woman’s life or mental or physical health, or if there is a substantial risk that the child would be born with “physical or mental abnormalities as to be seriously handicapped”.
When a woman’s pregnancy exceeds 12 weeks and is less than 20 weeks, at least two providers are needed to form this opinion. Unlike what is widely understood, under the Act, women and girls are actually not required to seek judicial authorisation or to obtain approval by a court-appointed medical board or anybody else for that matter, after the 20-week mark.
The procedural system now in place requiring court intervention after 20 weeks has been a result of several judicial decisions. Much like in the case of the 10-year-old rape survivor where the Supreme Court had directed setting up of permanent medical boards for abortions, evoking a prompt response from the central government by way of a direction to states and union territories to do the same.
These cases, however, have largely failed to clarify whether women can directly approach medical boards without first filing a petition or whether medical board approval is required in all cases beyond 20 weeks.
Conflict between laws
There is a lack of understanding among stakeholders and serious conflict in the framing of the MTP Act, the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, and the Protection of Children from Sexual Offences (POCSO) Act, 2012.
For instance, officials carrying out stringent inspections to curb sex determination under the PNDT, often clamp down on MTP centres and gynaecologists legally qualified to provide abortion services.
It is a similar case with the POCSO Act, which mandates that the service provider register a complaint of sexual assault with the police if a girl under 18 has sought an abortion. Given that between 45 and 47 per cent of girls get married under 18 years of age in India, this turns out to be a barrier for young women seeking an abortion.
Sneha Mukherjee, who is behind multiple PILs in this regard, explains that according to the PCPNDT Act, one can abort within 8-12 weeks, which she further said is what leads to sex-selective abortions. According to her, it should not be confused with the MTP Act as someone wishing to abort in general wouldn’t wait for 20 weeks to find out if they want a baby boy or girl.
“We must understand that the time period for two is different but they don’t necessarily have to overlap since someone who wants a sex-selective abortion would know from the very beginning and won’t exactly wait for 20 weeks as is the case under the MTP Act,” Sneha explained, while adding that there are grey areas.
More than the denial of abortion, the result of such grey areas is unsafe abortion services by unregistered providers, which places the lives of several women and newborns at risk.
According to research conducted recently, 13 women die in India owing to unsafe abortion-related issues every day and about 15.6 million pregnancies are terminated yearly in India. It also claims that 80 per cent of the women are actually unaware of abortion being legal and thus limit their chances of seeking safe abortion services.
Streamlining of the three laws should, therefore, be one of the foremost steps to enhance access to safe abortion services to women and guarantee them their health and human rights.
Also read: Train grassroots health workers in medical abortions to keep women from quacks, say doctors
Keeping pace with science
The MTP Act, which was widely recognised as being ahead of its time when it was passed in 1971, has sadly failed to keep up with not only the demands of the society but also science.
Medical experts argue that when formulated, the MTP Act relied on invasive procedures of abortion, which could lead to several health complications. Among other things, the mother’s safety in such a situation was factored in when setting the time limit for abortions.
Times, however, have changed and even abortion in later stages of pregnancy has become safer. Besides, several foetal abnormalities are detected only after 18-20 weeks of pregnancy, leaving the parents with barely any time to approach the court within the time limit.
Clearly, there is a need for a relook at the current deadlines under the Act, pursuant to interactions between the scientific community and the civil society.
Doing away with ‘third-party’ authorisations
There are several issues that mar the current system of judicial authorisations as well.
To begin with, it has been seen on several occasions that the requirement for examination by medical boards has led to women and girls facing repeated invasive medical scrutiny by panels of doctors as large as 11. With the courts always burdened with more cases than it can effectively handle, on several occasions the need for authorisation has created further delays that ultimately have led to the denial of abortions.
Besides, judicial authorisation also goes against India’s international law obligations, which clearly advocate against requirements of third-party authorisations, including those by spouses, parents, health authorities, and judges.
This requirement, therefore, must be tested on the touchstone of Article 21 of the Constitution (personal liberty) to ensure women’s and girls’ rights to surviving pregnancy and childbirth, and decision-making over their own bodies.
The way forward
Mumbai-based lawyer Anubha Rastogi feels that until the law is amended, nothing will come of it.
“The Supreme Court has heard cases of abortion pleas 23 times between 2016 and 2017. So, I’m sure by now it would know the concerns and something needs to be done,” she said, adding that there needs to be clarity on the constitution as well as on the requirement of permanent medical boards.
The MTP (Amendment) Bill, 2016, did propose certain amendments targeted at reducing procedural barriers for abortion services. It proposed increasing the abortion time limit and removing the limit altogether for pregnancies diagnosed with substantial foetal abnormalities. It also intended to authorise mid-level and non-allopathic healthcare providers to provide abortion services, expanding the currently limited base of such providers.
The efforts were, however, halted after investigations into the death of a woman in Maharashtra from an unsafe abortion performed by an unregistered provider uncovered evidence of sex-selective abortions being performed in the same facility.
With no indication of any initiative from the legislature and petitions being filed across the country, the onus now seems to lie on the judiciary to strike down the 20-week limit on scientific and constitutional scrutiny of the provision. The wheels are turning, with the Delhi High Court last week issuing a notice on one such petition, and the Madras High Court taking suo motu cognisance of the issue.
Colin Gonsalves, who heads the Human Rights Law Network, feels it is important for the Supreme Court to take up the main petition regarding the time limit, instead of frequent adjournments, as this is why so many women keep moving court with respect to their abortion pleas.
There is also scope for interpretation of Section 5 of the Act, which allows abortion without following the procedure under the law in case a medical practitioner believes it to be necessarily done to save the life of a pregnant woman. It has been argued that the provision can be liberally interpreted to include risks to the pregnant woman’s mental and physical health, including from rape and diagnoses of foetal impairment.
The Bombay High Court’s judgment last year emphasising the use of the provision and directing the state to take responsibility of the child if the parents choose not to, has laid down the requisite path for other courts to take lead and build on the jurisprudence from hereon. It is essential that India sets the record straight and takes a stand for upholding women’s reproductive rights especially when developed countries are now vacating the pedestal to adopt regressive and oppressive laws.
Also read: Alabama passes harshest anti-abortion law in US, effectively banning procedure
- The copy has been updated to reflect the latest figure on annual abortions, which is 15.6 million a year.
A successful abortion always kills a baby and so, so many times brings great physical as well as psychological pain to the mother. To think of abortion as some quick fix to help you get back to your life before the baby is very shortsighted. Rather than killing your baby and with that putting your own life in danger, choose life and adoption. And by the way, a baby with an anomaly has equal value to a so-called ‘normal’ child. In this case the solution should be to offer help to the family rather than murder the child.