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HomeReportTweaking India's abortion law: Fear of foeticide trumping women’s reproductive rights?

Tweaking India’s abortion law: Fear of foeticide trumping women’s reproductive rights?

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MTP Act currently allows abortions for pregnancies up to 20 weeks, but Centre has had a proposal to extend the limit to 24 weeks in the pipeline since 2014.

New Delhi: In the last few years, the courts have become an unlikely destination for women who are more than 20-weeks pregnant seeking abortions. Last year, the apex court dealt with more than 16 such cases. The latest was from the Jharkhand High Court, which allowed a 23-week pregnant minor to undergo abortion.

The judiciary has developed a routine for such cases now. A special medical board of top doctors is constituted within a day and, based on its assessment, the court allows or rejects the plea.

The Medical Termination of Pregnancy (MTP) Act currently permits abortion for pregnancies up to 20 weeks. In cases that require abortions after the statutory period, a woman is forced to approach the high courts or the Supreme Court. So why not fix the law?

MTP Act in the pipeline

The Centre has had an amendment to the MTP Act in the pipeline since 2014. The amendment seeks to allow women to abort unwanted pregnancies up to 24 weeks, as opposed to the current 20-week limit, and to allow practitioners of alternative medicine such as AYUSH to carry out abortions through non-surgical methods.

But the amendment is nowhere close to seeing the light of day. It was delayed for the first time after a quack homoeopathy doctor’s racket was exposed in Maharashtra’s Sangli district, raising fears that the law is likely to be misused.

But the need to extend the limit has been highlighted in an array of cases over the last decade.

The courts, for example, have been inconsistent in dealing with minors seeking abortions. The apex court not only allowed a minor to seek abortion but also granted her compensation since her pregnancy was out of rape.

The Bombay High Court, on the other hand, declined a plea by a minor’s father, seeking to abort her 26-week-old foetus. Then, in April this year, the Supreme Court declined the abortion plea of an HIV+ woman from Patna, citing danger to her life.

Although both courts relied upon findings of medical boards, not having a concrete legislation is glaring, according to experts.

Fear of selective foeticide

“Nothing is in black and white,” said Lalitha Kumaramangalam, former chairperson of the National Commission for Women (NCW), which had come out in support of the amendments last year.

“I may feel strongly or you may feel strongly that the amendments must go through, but if there is a section of people that thinks that this amendment shouldn’t be there (since) it’ll give easier access to foeticide, then it is the job of the government to answer those queries or doubts or questions.”

But reproductive rights of women cannot be impinged upon to fix the skewed sex-ratio, argued Dr Subhashree Balakrishnan, gynaecologist and member, Common Health, the coalition for maternal health and safe abortions.

“There is a legitimate concern about sex-selective abortions. But both sex-selection and reproductive rights are gender issues. You cannot deal with one by impinging on the other. To limit abortion rights to fix the sex ratio is a flawed strategy,” she said.

No reason not to increase the limit

These cases filed to get fighting chances to exercise reproductive rights get caught in a judicial maze, effectively rendering the choice of women ineffective. It is also a costly affair to move constitutional courts and engage lawyers for urgent hearings.

Sneha Mukherjee, an advocate with the Human Rights Law Network, who routinely handles such cases, said the government was not serious about the issue.

“The standard move is to seek abortion and simultaneously challenge the 20-week limit in the legislation. The government is yet to file a response in these cases,” she said.

The first of these cases was filed by Nikita Mehta, a 22-weeks pregnant woman, when she discovered that her foetus had severe abnormalities and would not survive. Along with her doctor, she appealed to the Bombay High Court to grant her permission to terminate the pregnancy. The high court, however, ruled that the MTP Act does not make exceptions. Nikita’s doctor Nikhil Datar challenged this before the apex court, which is still pending.

In a society such as India with a strong preference for male progeny, sex-selective abortions are a reality. However, to promote gender balance in society at the cost of the reproductive rights of women might be an ironic path to tread.

“When the MTP Act was enacted, it was dangerous to carry out abortions after 20 weeks, but since then, there has been enormous progress in medical technology,” argued Dr Balakrishnan. “There is no rationale behind not increasing the gestation limit from 20 to 24 weeks.”

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