A 22-year-old woman from Thane was on Monday allowed by the Supreme Court to undergo abortion in the 24th week of her pregnancy. The Dombivali resident was reportedly scheduled to undergo the procedure on Wednesday. The woman underwent her first sonography after 20 weeks of pregnancy, which is a cap for abortion under the MTP Act. In her 23rd week, she approached Dr Sangeeta Pikale for an abortion, who then advised the court to intervene. The case has once again rekindled the debate around the Medical Termination of Pregnancy (MTP) Act, 1971 that legalises abortion only under the 20-week ceiling with an exception being Section 5 of the Act, which allows abortion after 20 weeks in case it “is immediately necessary to save the life of the pregnant woman.”
What do the Indian abortion laws state?
According to the MTP Act, a pregnant woman may undergo abortion under 20-week ceiling. However, if “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped,” a woman may abort her foetus after 20 weeks.
The MTP Act also overrides IPC Section 312 which states that “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.
The Act allows a woman to get an abortion within the first 12 weeks of pregnancy, provided a registered medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health. If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners.
What is the recent development?
The apex court on Monday allowed a 24-year-old women from Dombivali to undergo abortion as the baby suffered from anencephaly, a life threatening condition. “In such situations, the baby can only survive In Utero. Death is inevitable after birth,” said gynaecologist Dr Pikale, who was consulted by the pregnant woman. The KEM hospital had earlier submitted a report confirming a radiology test that diagnosed the baby with the defect. According to a panel member from KEM hospital, the skull and brain tissue development of the foetus were absent. The couple was relieved after the top court allowed the woman to undergo abortion. They had been married for a year and this was their first pregnancy.
Has the law been challenged earlier?
The Thane case is the second such case before the apex court within a year. In July 2016, the top court allowed a woman to undergo abortion in her 24th week of pregnancy at Dr RN Cooper hospital in Vile Parle, Mumbai, granting her the benefit under Section 5 of Medical Termination of Pregnancy (MTP) Act, 1971, that allows abortion despite the 20-week ceiling.
In 2008, Haresh and Niketa Mehta petitioned Bombay High Court to allow them to abort their 26-week-old foetus who had been diagnosed with a heart defect. For the first time, the national medical narrative took note of the fact that with the advent of medical technology, pre-natal diagnosis of defects had come a long way — and some defects could be revealed after 20 weeks has passed. The Mehtas’ plea was turned down on expert advice. But the court’s observation that only the legislature could address the demand for change in the legal limit meant that India started the process of re-evaluating provisions of the Medical Termination of Pregnancy Act, 1971. Niketa, incidentally, had a miscarriage soon after the verdict.
In 2015, a 14-year-old rape victim from Gujarat sought and received permission from the Supreme Court to abort after the 20 weeks deadline had passed. Her petition was treated as a “special case”, meaning it could not be used as a precedent to grant permission in another case.
Should the MTP law be amended?
Legal and medical experts feel that a revision of the legal limit for abortion is long overdue. Foetal abnormalities show up only by 18 weeks, so just a two-week window after that is too small for the would-be parents to take the difficult call on whether to keep their baby and for the medical practitioner to exhaust all possible options before advising the patient to take the extreme step. The rising incidence of sex crimes and the urgent need to empower women with sexual rights and choices both in their own interest and for the sake of reducing the fertility rate as a whole, have made it imperative that the law be changed. Also, since lack of legal approval does not prevent abortions from being carried out beyond 20 weeks, women are put under risk since the abortions then are often conducted in shady, unhygienic conditions by untrained, unqualified quacks.
(With ENS inputs)