Abortion Act amendment stuck in the womb

When it came into being in the 19th century, the abortion laws in India were rated as the most liberal in the world. But now, in the second decade of the 21st century, it has turned out to be archaic and insensitive, as it failed to evolve in tune with the scientific developments. Worse, the Act ignores the idea of ‘choice’, denying women the ‘right to choose abortion’.

As per the Medical Termination Act (MTA), 1971, a pregnancy can be terminated only up to 20 weeks of conception, that too based on four conditions: if it poses risk to a mother’s life, or to her physical or mental health; if the foetus has severe abnormalities; if the pregnancy was a result of failure of contraception (which applies only to married woman); and if it was a result of sexual assault.

The 20-week rule was put in place then to prevent gender identification that was done for sex-selective abortions. But now, the Act fails to factor in the advancement of technology, using which the sex of a baby can be determined as early as seven weeks of pregnancy. Above all, the scientific advancement enables termination of a foetus safe up until 24 weeks of pregnancy, making the 20-week norm obsolete.

Realising the situation, the Union Health and Family Welfare Ministry proposed an amendment to the MTP Act in October 2014. Besides extending the legal abortion limit to 24 weeks, it gave the right of legal abortion to the women regardless of her marital status and doing away with the condition of having a second doctor’s signature for termination of pregnancies beyond 12 weeks among others.

But, despite the passage of four years, the draft, which reportedly did some rounds in the Cabinet and the Prime Minister’s Office, is yet to be finalised into an amendment to the Act.

The situation has not changed even after the Supreme Court had held in a landmark judgement that right to privacy applies to abortion. “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy,” it had said.

Of all the births in India, accounting to about 26 million a year, approximately two to three per cent are found to suffer from severe congenital or chromosomal defects. But then certain abnormalities can be confirmed only after the 20 week-mark. Apart from congenital abnormalities, there are rape survivors including children who carry unwanted foetus, making it imperative to make those proposed amendments into law and put an end to rampant unsafeabortions.

Senior counsel R Vaigai is among those who are sceptical about the proposed amendments being made into law any time soon. “Anything concerning women is usually put on the backburner. The ingrained patriarchal mindset still refuses a woman her right over her body. It is utterly insensitive to expect women to flock to court while being 20 weeks pregnant with deformed or unwanted baby. And worst is the courts denying permission without relying on scientific data.”

Coming across a string of cases seeking termination of pregnancy beyond the 20 week-norm, the Madurai bench of the Madras High Court had in April sought the Centre’s response as to when the proposed amendment increasing the upper gestation limit to 24 weeks would come into being.

Raising the query, Justice N Kirubakaran also directed the Centre to remove the upper gestation limit for abortion in the case of rape survivors including child victims.

In another order, Justice N Anand Venkatesh had also held that where a survivor suffers an unwanted pregnancy and where the length of pregnancy does not exceed 20 weeks, she need not be referred to the medical board. He also wanted the doctors and the Courts to be more sensitive and act fast, as the girl was carrying a foetus, which keeps reminding her of the agony she faced due to rape and depression due to the pregnancy forced on her.

Advocate V Kamala Kumar of the Madras High Court cited the submission by doctors that abortion was strictly a medical issue and a personal choice, and hence termination should solely be at their discretion and not the law.

“Though the courts may have been giving more nods to abortion cases, there have also been instances of ethical and moral values coming into play. This not only denies the right to abortion but also forces the woman to continue with the pregnancy despite knowing that the foetus has an abnormality.”

For Dr J Gomathy, resident medical officer and obstetrician at Institute of Obstetrics and Gynecology, the termination of the foetus after 20-weeks is risky for the mother and thus, the rules should not be relaxed. “There are chances of excessive bleeding, higher infection rate and other risks that can harm the mother. In case of termination post 20 weeks, the foetus is viable and it is more or less like killing a baby. Moreover, the opinion of more than one obstetrician is necessary before undertaking an abortion as it might be risky for the health of the mother,” she said.

“The consent of the mother and her medical condition should always be considered. However, the conditions that it applies only to a married woman in case of failure of contraception should be removed as a mother’s right to abortion should not be decided based on their marital status,” the doctor added.

With both Supreme Court and High Court holding that abortion was a medical matter and also one of privacy – and hence, choice of the woman – it now is upon the legislature to carry the law into the modern ages.