Abortion-A Legal Issue
Abortion was again in news when the Supreme Court of India declined the abortion request of a 10-year-old rape survivor who was reportedly 32 weeks pregnant.
Doctors who examined the adolescent opined that an abortion at this stage posed a risk to her life. Under the circumstances, the court could not have done much else.
In an earlier judgment in July, 2016 the Supreme Court allowed an adult mother to abort her over-20 week foetus. It relied on a report of a medical board which said that the infant was likely to suffer from a severe mental injury or cardiac problems that would require multiple surgeries.
Medical Termination of Pregnancy Act, 1971:
- The MTPA, 1971, came into force, following the recommendation of the Shantilal Shah Committee Report in 1966 that stated that abortion and reproductive rights need to be regulated by law.
- The MTPA was amended in 2002 that decentralised the law of abortion by allowing penal sanctions for unapproved forms of abortion, and the formulation of MTP rules in 2003.
- In 2006, in Nand Kishore Sharma v Union of India, the MTPA was challenged on the grounds that it violates the right to life under Article 21 of the Constitution. The Court, in this judgement, stated that the relevant provision of the MTPA was not unconstitutional and was in consort with Article 21. The Court, however, did not opine about whether the Act is in violation of the right to life of the foetus, stating that it would be difficult to pinpoint when the life of the foetus begins.
- The Medical Termination of Pregnancy Act stipulates a cap of 20 weeks within which an abortion can be performed.
- While advising an abortion, medical practitioners are expected to evaluate whether continuing with the pregnancy would involve a risk to the life of the mother or cause grave injury to her physical and mental health. Alternatively, the decision is based on whether there would be a substantial risk of the child being handicapped by physical or mental abnormalities.
- Section 5 provides for a legally-mandated exception that overrides the ceiling of 20 weeks provided by the MTPA, 1971, to allow an abortion in case it “is immediately necessary to save the life of the pregnant woman”.
The Medical Termination of Pregnancy (Amendment) Bill, 2014:
- A step forward, it proposed increasing the abortion ceiling limit from 20 to 24 weeks.
- It introduced the concept of “substantial foetal abnormalities”— in which case the time period of pregnancy is irrelevant.
- It widened the scope of who could carry out the abortions by introducing the term “registered health care provider”, which included recognised practitioners of Ayurveda, Unani and homoeopathy.
- It states that a healthcare provider may “in good faith” allow abortion between 20 to 24 weeks of pregnancy, if there is substantial risk to the mother or the child, or if it is “alleged by the pregnant woman to have been caused by rape”.
- The draft law identified the current scenarios where rapes are rampant and states pregnancy resulting from rape “may be presumed to constitute a grave injury to the mental health of the pregnant woman”, and that such an injury could be a ground for allowing abortion.
Unfortunately, the Bill is still awaiting approval. The Prime Minister’s Office believes that amendments to the Act are likely to give rise to illegal sex selection and abortion rackets.
Abortion should be allowed(Arguments)
- The 20-week cap is somewhat arbitrary and has drawn rightful criticism.
- Foetal impairments often get detected at the ultrasound done between 18 to 22 weeks, when the foetus is said to have “substantially developed”. But in a country where a majority of expectant mothers still seek advice from midwives and Accredited Social Health Activists (ASHA), ultrasounds are only done when something “unusual” is suspected.
- In pregnancies prior to the point of viability – a point at which the fetus cannot live outside the womb –the government does not have the right to impede a woman’s decision to terminate the pregnancy.
- The court has observed that in the case of pregnant women, But from a women’s rights perspective, should not a pregnant mother have the right to decide whether to go through full-term when there is even the slightest chance of a foetal infirmity and not “substantial foetal abnormalities”?
- It is fair to state that no woman who voluntarily chose to get pregnant is likely to seek an abortion unless there are compelling circumstances. Should not the wishes and desires of the person who will be the caretaker be considered?
- An adult woman should have a choice to decide when to give birth to a child because she has to devote to child physically,emotionally and financially.She should decide according to her circumstances.
Abortion should not be allowed(Arguments)
- There is a “compelling state interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified are fulfilled.
- Even a non-viable, undeveloped human life is sacred and must be protected by the government. Abortion must not be legal according to this model, nor should it be practiced on an illegal basis
- In contrast to what PMO believes, the World Health Organisation notes: “Legal restrictions on abortion do not result in fewer abortions nor do they result in significant increases in birth rates.” Conversely, laws and policies that facilitate access to safe abortion do not increase the rate or number of abortions.
- The principal effect is to shift previously clandestine, unsafe procedures to legal and safe ones.
- Restricting legal access to abortion does not decrease the need for abortion, but it is likely to increase the number of women seeking illegal and unsafe abortions, leading to increased morbidity and mortality.
- Legal restrictions also lead many women to seek services in other countries/states, which is costly, delays access and creates social inequities.”
- The WHO report also says that “laws and policies on abortion should protect women’s health and their human rights. Regulatory, policy and programmatic barriers that hinder access to and timely provision of safe abortion care should be removed.”
- Given the advancements in medical science, a lot of abnormalities can be determined by an ultrasound midway through a pregnancy. Unfortunately, there appear to be no guidelines relating to the conduct of ultrasounds. As a starting point, we need uniformity in medical standards.
- Simultaneously, the long-pending Bill, which took into account some of the changed circumstances, needs to get passed.
- It would be helpful alongside to also lay down objective standards to be followed by health-care providers so that every case does not fall in the court’s cradle as it is not the desired route for the delivery of justice in abortion cases.
Abortion the world over is a sensitive topic. Arguments cut both ways. Each country has its own time limit within which the pregnancy may be terminated, but in most cases it’s more than 20 weeks. With the Supreme Court’s judgement, the time is ripe to endeavour to amend the MTPA to allow for a revised legal limit for abortion.