Abortion And The Law In India

Sangram Chinnappa & Abeera Dubey

11 Jun 2020 5:50 AM GMT

  • Abortion And The Law In India

    On 22nd May 2020, out of barely 30 cases enlisted on the daily board of Bombay High Court, 4 cases were for medical termination of pregnancy. One such case was of a 13-year old minor girl who was 22-weeks pregnant. The petition was filed through the girl's mother, a pavement dweller living in Thane. The girl in the case is a survivor of heinous rape alleged to have been committed by...

    On 22nd May 2020, out of barely 30 cases enlisted on the daily board of Bombay High Court, 4 cases were for medical termination of pregnancy. One such case was of a 13-year old minor girl who was 22-weeks pregnant. The petition was filed through the girl's mother, a pavement dweller living in Thane. The girl in the case is a survivor of heinous rape alleged to have been committed by her own father. It has been reported that the father used to regularly abuse the girl, she then moved to south Mumbai to live with her aunt and stayed with her during the lockdown. On 14th May, the girl told her aunt about the assault, after which she fell ill and was taken to the hospital. She was later diagnosed to be 22 weeks pregnant. When she went with her aunt to file the FIR at Crawford Police Station they wrongly refused to lodge her complaint and directed her to go to Thane Police Station. This was not an easy task as the entire country was in lockdown due to COVID-19. After they finally managed to lodged the FIR at the Thane Police Station under various sections of IPC and POCSO she was taken to taken to a JJ Hospital for an abortion. As she was already beyond the 20 week limit stipulated in the law, her family was informed that their only recourse was to get a judicial order from the High Court. The family which has a tough time making ends meet and without any source of income due to the Pandemic were made to run from pillar to post to find a lawyer who could help them out pro bono as they could never afford the fees for filing a Writ Petition in the High Court.

    Once the matter was finally filed in the High Court, the court set-up a medical board in JJ Hospital to assess the case on whether it is advisable to permit the abortion. The victim had to wait in the hospital for almost the entire day till almost 10.30 P.M. after which she was finally admitted for days during which the Medical Board conducted all the relevant diagnostic tests. Thereafter, the board observed that the continuation of pregnancy can cause mental and physical suffering to the survivor, and advised termination of pregnancy. In light of the report, the court permitted the medical termination of pregnancy and ordered the minor to present herself on 29th of May at Sir JJ Hospital for the procedure. This is a standard procedure and the courts usually agree with the findings of the Medical Committee and pass orders accordingly. The ordeal of having to approach the High Court is something no woman or child should ever go through at such a traumatic time in their lives.

    Law in India and the Issues

    Medical Termination of Pregnancy Act, 1971 (MTP Act) governs when and how the pregnancy can be terminated in India. It allows pregnancy to be medically terminated within 20 weeks as per the opinion of the medical practitioner(s) that such pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health. Under the act, grave injury includes pregnancy that has been caused by rape committed on the woman, that occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children or the ones with a risk that the child would be born handicapped.

    Over the 20 week period, the pregnancy can only be terminated if it is immediately necessary to save the life of the woman.

    Though medical abortion is permitted within 20 weeks of pregnancy, it can only be terminated after the medical practitioner is of the opinion that that the termination falls under one of provisions provided under the MTP Act. Therefore, a woman has to justify that the pregnancy occurred despite her trying to prevent it or that the circumstances are unfavourable. The final say, however, rests with the medical practitioner who may take a more liberal or restrictive approach on the issue and determine whether the abortion should take place or not.

    In case the pregnancy exceeds 20 weeks (and it is not immediately necessary to save the woman's life), the law leaves women no choice but to carry the pregnancy to term. Various writ petitions are filed in the High Courts to seek permission from the courts to terminate the pregnancy post the allowed period. Not allowing termination of pregnancy after 20 weeks causes grave hardships to women. Filing a petition in the High Court is not a remedy every woman can access, in which case they are left with no choice then to either go for unsafe and illegal abortion practices or mental trauma for a pregnancy they were not prepared for. According to a research as many as 5 6% abortions in India are unsafe and 10 women die due to it everyday.

    In the present case, the family could only diagnose that the child was pregnant after she crossed the 20 weeks period. The only choice available to them was to file a petition in the High Court. Filing a writ petition in the court is not an easy option for the majority of women. It is even more difficult for women living in rural areas as the nearest High Court Bench can be hundreds of kilometers away and the logistics and costs of filing a Petition can be a daunting task for them.

    The 20-week limit imposed in the act which was framed in 1971 has also become irrelevant with the advancement in technology in today's world. According to Aruna Muralidhar, senior consultant for obstetrics and gynaecology at Fortis La Femme hospital, Bengaluru "there is not much difference whether an abortion is conducted at 20 or 24 weeks safety-wise". Advances made in the field of science have made it possible to terminate a pregnancy during the second and third trimesters easy and quick w ithout significant complications. Therefore, the risk involved in terminating a pregnancy in the 24th or 28th week is no greater than the 20th week.

    The Way Forward

    In January this year, the Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the existing Act. The new bill increases the gestation period for medical termination of pregnancy from 20 weeks to 24 weeks. It also makes changes to what includes grave injury to mental and physical health of a woman. Instead of failure of a device used by a married woman or her husband to limit the number of children, the bill makes it the failure of any device or method for preventing pregnancy by any woman or her partner. The bill also adds the provision for the privacy of the pregnant woman and makes it punishable if the medical professional reveals names and other particulars of the woman. The bill further makes provisions for setting up a Medical Board in every state and union territory consisting of Gynecologist, Paediatrician,

    Radiologist or any other members as declared by the government. The upper gestation limit of 24 weeks will not apply in case the Medical Board diagnoses any substantial foetal abnormalities which necessitates medical termination. The bill was introduced in Lok Sabha by the Minister of Health and Family Welfare, Dr. Harsh Vardhan on March 2, 2020 and has been passed by Lok Sabha. The bill is yet to be passed by Rajya Sabha.

    Studies over the years have shown that the risk involved in terminating the pregnancy in the 28th week is no greater than the risk involved in the 20th week. Therefore, the period for allowing MTP should have at a minimum been increased to 28 weeks. Nepal allows abortion upto 28 weeks in case of rape, HIV etc, while abortion in Canada is legal at all stages of pregnancy. In an endeavour to make this process more accessible and convenient for women in the Country, the latest amendment should be implemented at the earliest.

    As per the proposed amendment States and UTs are supposed to set up a Medical Board in their state. This however would be extremely inconvenient for women seeking to get an abortion. The States should set up a Medical Board in each district so that a single board is not over burdened and consequently delay the entire process.

    In the end it should be kept in mind that reproductive choices are a women's integral right under personal liberty. It was observed by the Supreme Court in the case of Suchita Singh vs Chandigarh Administration that to procreate or abstain from procreating is a woman's right to privacy, dignity and bodily integrity that should be respected, "the right to make reproductive choices is is also a dimension of personal liberty as understood under section 21 of the constitution of India". The amendment to the MTP Act is a step in the right direction but the MTP Laws in the Country are far from ideal for women.

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