A petition has been filed in the apex Court, demanding an increase in the limit on abortion from 20 to 28 weeks. One of the petitioners is Dr. Nikhil Datar who had earlier supported his patient, Nikita Mehta for abortion after a cardiac arrest was detected in the foetus in the 24th week of gestation.
Datar asks, "If Indian law allows a doctor to terminate pregnancy if its continuation poses grave physical or mental injury or risk to life of a woman, why can't a pregnant woman with abnormal foetus be allowed to go for abortion after 20 weeks?
The petition has been filed through the NGO, Human Rights Law Network. They submit that the Act violates a woman’s right to physical integrity and the 20-week limit can cause severe foetal abnormalities.
The reportedly petition stated that out of the 26 million births that occur in India every year, approximately 2-3 per cent foetuses have a severe congenital or chromosomal abnormality, the petition said.
Senior advocate Colin Gonsalvis, submitted to the Bench headed by Justice Ranjana Gogoi that Medical Termination of Pregnancy Act was formulated on the basis of a study carried out in 1971. With the advancement in technology, there is no harm for a woman going for abortion at any stage. Committee of experts have also negated any physical or mental harm due to the extension.
It was agreed by the National Commission for Women, the Federation of Obstetricians and Gynaecologists of India (FOGSI), the International Community and women’s groups, that the 20-week limit is irrational, outdated and unconstitutional.
Under the MRTP Act, abortion is only legal for foetal impairment or in select cases of “grave injury” to mental health until the 20th week of pregnancy. After 20 weeks, it is allowed when the pregnant woman’s life is at stake.
In Nikita Mehta’s case, the pregnancy was beyond the legal limit. The doctor and the couple hence sought judicial authorization from Bombay High Court, which failed to recognize the severe mental anguish suffered by Mehta because she was forced to carry a pregnancy to term that medical experts had testified could end in foetal demise or, result in the birth of a child with a seriously compromised quality of life. Mehta miscarried a week after the Court’s decision.
The right to safe and legal abortion is a human right. In 2005, the Human Rights Committee considered a case of denial of a legal abortion where the foetus was severely impaired.
It held that denial of abortion when the foetus is severely malformed violates a pregnant woman’s right to freedom from cruel, inhuman, or degrading treatment by causing foreseeable and preventable mental distress.
The International Federation of Gynaecology and Obstetrics (FIGO) recognizes an ethical obligation to allow women to terminate a severely malformed foetus.
FIGO emphasizes that in such cases, “[t]he decision to terminate a pregnancy should rest primarily with the parents.”
The Special Leave Petition hence, claims that under the Indian Constitution, the Right to life includes the Right to health and the Right to a dignified existence. Both of these rights are violated when women are compelled to carry a pregnancy to term that compromises their health and that can severely impact their financial wellbeing and family welfare.
The Centre’s memorandum further argues that an abortion law that lacks a health exception throughout pregnancy interferes with providers’ ability to ethically provide the best quality of care for their patients, including care needed to prevent foreseeable harm to pregnant women’s lives and health.
The petition seeks an order by the Supreme Court directing the Government of India to revise the MTP Act to permit abortions for foetal impairment throughout pregnancy. It also requests the Court to consider establishing an authorization process that involves the woman’s own doctor(s) and the opinion of the pregnant woman.
It also urges the apex Court to evaluate the possibility of creating an appeal process that can provide women with recourse in case of an inappropriate refusal to terminate.