New Delhi: ‘The baby is currently viable — that is he will show signs of life and have a strong possibility of survival — so we would need a directive from the Supreme Court on whether a foeticide can be done before the abortion.’ This is what an AIIMS doctor wrote in an email to the Supreme Court on 10 October last year. The email changed the course of the debate on abortion in India.
The email was written after a two-judge bench of the Supreme Court, on 9 October, allowed a 27-year-old woman, ‘X’, to terminate her 26-week pregnancy.
However, after this email, the same bench delivered a split verdict, and then, a three-judge bench rejected the woman’s plea for abortion on 16 October, underlining the importance of balancing the rights of a woman to autonomy and choice, with the rights of an unborn child.
And the mail has already begun changing the course of the lives of several women seeking an abortion in India.
Last month, the Delhi High Court also recalled an order allowing a widow to terminate her 29-week pregnancy on the grounds that she was going through “immense trauma” and showing “suicidal tendencies” after the death of her husband. The order allowing abortion was recalled after the AIIMS wrote to the high court, saying that at 30 weeks and six days, the foetus “will be alive after delivery”.
The debate on the right of a woman to terminate her pregnancy as against the right of an unborn child has been gaining steam in India. And advocate, Dr Amit Mishra, is at the centre of it all.
He was representing the women in both these cases, and has brought several such cases to the Delhi High Court as well as the Supreme Court in the last one-and-a-half years.
Currently, the Medical Termination of Pregnancy (MTP) Act, 1971, allows an abortion up to 20 weeks by a registered medical practitioner, and up to 24 weeks of pregnancy only for certain categories of women, including survivors of sexual assault or rape or incest.
Mishra told ThePrint that the judgment in X’s case will impact abortion rights of women in India, because the court is now considering the rights of the foetus as well.
“The court wants to balance the right of the mother with the rights of the foetus… The judgment refusing abortion to the mother and granting the order in favour of the foetus… now the government is citing this case as a precedent in other cases in high courts.”
The government is added as a respondent in abortion petitions filed by women. It can then support or object to the petition, and a medical board is also usually constituted in a government hospital.
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‘Rape includes marital rape’
Mishra began taking up abortion-related cases in court in July 2022. The first such case that he took up also turned into a landmark judgment, in which the SC clarified that the exception for rape survivors under abortion law would extend to victims of ‘marital rape’.
The court was hearing a petition filed by a woman from Manipur, who currently resides in Delhi. She had submitted that she was in a consensual relationship and realised that she was pregnant in June 2022. However, she decided to get an abortion when she was 22 weeks pregnant after “her partner had refused to marry her at the last stage”.
This is when she approached Mishra. They moved the Supreme Court after the Delhi High Court rejected her petition for abortion on 15 July, 2022.
Her predicament was clear. She had told both the courts that she did not have a source of livelihood and would not be able to raise a child on her own. She had also said that she did not want to carry the pregnancy to term since she was wary of the “social stigma and harassment” meted out to unmarried single parents, especially women.
The court allowed the woman to abort her pregnancy. It was Mishra’s first abortion case and his first win. And it was just the beginning for him.
In its judgment in the case, the SC also clarified that “rape” under the MTP Act and the Medical Termination of Pregnancy Rules, 2003, would include “a husband’s act of sexual assault or rape committed on his wife”, or marital rape.
‘After 24 weeks, woman does not have any rights’
Mishra told ThePrint that he has now been getting at least one or two such cases every month.
“What I have noticed after 24 weeks, the woman does not have any rights… if any woman seeks abortion in India, it’s usually not her choice. It’s rather the choice of the doctors or the courts. The choice is only up to 20 or 24 weeks, depending on the category you fall into,” he said.
However, according to him, the rights of the foetus begin only when he or she is born.
“If the foetus is in the mother’s womb, the right of the foetus will start when he or she comes out of the womb. Until he or she is inside the womb, the legal right is not conferred on them, because they are a part of the mother,” he told ThePrint. “Mother’s rights are always paramount.”
“Of course, we have to see facts and circumstances of every case. If the mother has taken such a decision, there must be valid grounds for it. We must respect the mother’s decision.”
Mishra started his practice in 2007 in the Delhi district court, and managed to earn Master’s and PhD degrees in law during this time. He is married to a doctor, who is a general physician.
A win and a loss
Another win for Mishra came on 4 January, in the case of the 26-year-old widow, ‘R’, when the Delhi High Court allowed her to undergo abortion.
R had got married on 26 February, 2023, but her husband passed away in October. The same month, she found out that she was 20 weeks pregnant and in December, decided to not continue with her pregnancy. By then, she had already crossed the 24-week pregnancy mark. She then told the high court that she was suffering from extreme trauma due to the unfortunate demise of her husband.
Her psychiatric evaluation by the AIIMS revealed that she “had depressed affect and ideas of worthlessness, suicidal thoughts secondary to refusal to MTP, foeticidal thoughts with impaired judgement and insight”.
Rule 3B(c) of the MTP Rules allows termination of pregnancy of up to 24 weeks in cases of change of marital status — including widowhood and divorce — during the ongoing pregnancy.
The high court, relying on the SC’s judgment in the case of the woman from Manipur, allowed her to terminate her pregnancy. It said that her condition “can result in the petitioner losing her mental balance and she can harm herself in the process”.
However, this win was short-lived. A day after this judgment, the woman visited AIIMS on 5 January for her abortion, but the doctors asked her to seek clarification over the status of the foetus, if it is alive after the procedure, from the high court.
On 6 January, the AIIMS wrote to the high court, saying that at 30 weeks and six days, the foetus “will be alive after delivery”.
The letter said that if the procedure is carried out now, the anticipated requirement for neonatal intensive care will range from 30 to 45 days, with “reasonable risk of physical and mental handicap subsequently”.
It added that if the pregnancy was carried on till term, of 37 weeks, the anticipated requirement of neonatal intensive care will be minimal to nil, and “there will be very high likelihood of morbidity-free survival”.
Also Read: India and US went pro-choice around the same time. Only one strengthened its abortion laws
Another recall
What followed was another round of hearings in the high court. Seven AIIMS doctors joined the hearing on 9 January, and ‘R’ was asked to go to the hospital for further counselling on three days.
On 23 January, the high court recalled its 4 January order. It said that if R wants to give her newborn up for adoption, the central government shall ensure its process takes place smoothly, and at the earliest.
During the hearing, the government cited the SC judgment in X’s case, passed on 16 October last year. The court also took note of R’s psychological assessment report which said that she was suffering from “severe depression with anxiety features which associated with her stress (from) life events and not suggestive of any psychotic features”.
The AIIMS medical board told the court that since the foetus did not show any abnormality, foeticide in this case was “neither justified nor ethical”.
However, Mishra pointed out that the law does allow abortion after 24 weeks in cases where the medical board diagnoses substantial foetal abnormalities.
“In those cases too, we do foeticide. Then why are we discriminating between the able and the disabled? The Constitution does not discriminate between able and disabled people, then why are we discriminating between them in the womb? Just because that foetus is suffering from some abnormality?” he said.
X has decided to raise the child
Mishra also pointed out the difficulties for women who have crossed the 20 or 24-week mark for abortion and have to approach courts to seek permission for it.
He recalled a case in which a 31-year-old married woman was 21 weeks pregnant and had approached the Delhi High Court for an abortion, saying that she was tortured and abused verbally, physically, mentally and emotionally ever since she got married last year. She said she had decided to part ways from her husband and wanted to undergo abortion.
On 16 October last year, the high court directed the AIIMS to constitute a medical board for her examination, but also pointed out that the woman had neither filed any FIR against her husband complaining of physical abuse, nor a divorce petition. Her husband was asked to be made a party to the petition.
On 19 October, the woman then told the court that she had filed a complaint against her husband. It was then that the court permitted her to terminate her pregnancy on the ground that she didn’t want to live with her husband any longer.
Mishra, therefore, asserts that the law needs changes.
“The law currently allows third parties, like the state, doctors, courts, to interfere in a woman’s privacy. Who are they to make decisions for women’s bodies?” he asked.
As for X, who had approached the SC for terminating her pregnancy last year, she delivered a child, but has since refused to give the child up for adoption.
“It’s not an easy decision for the mother to give the child up for adoption after carrying her for nine months… We should respect this decision of the mother, too,” Mishra told ThePrint.
(Edited by Nida Fatima Siddiqui)
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