Except in case of emergeny abortions, the law does not state who can take a decision if an abortion is required after 20 weeks. Legally, doctors are not allowed to decide on this. So, the only recourse for a pregnant woman will be to approach the Courts allow the abortion.
There are many cases where a request has been made to the Courts to abort the fetus after 20 weeks, for several reasons such as:
- The pregnancy is harmful to the health of the woman.
- The pregnancy would result in abnormalities for the baby.
- The pregnancy was caused by an act of rape.
- The abortion could not be done before 20 weeks because of the negligence of medical authorities.
Courts usually refer such cases to a Medical Board or a Medical Panel set up in hospitals, to look into the pregnancy and determine whether the abortion should be conducted, taking into account the health and well-being of both the mother and the fetus. After carefully considering the opinion of the Board or Panel, they decide whether the abortion beyond 20 weeks should be allowed.
The decisions made by Courts are usually on a case-to-case basis. For example, the Kerala High Court1 dismissed a couple’s plea to abort a 35-week-old fetus. The couple had requested the abortion for medical reasons because the fetus has serious developmental brain anomalies. The Punjab and Haryana High Court2 has decided to look into the issue of abortion after 20 weeks of pregnancy.
For more information on access to safe abortions, please refer to this government handbook.
Who can perform abortions?
Under the law, only a ‘Registered Medical Practitioner’ can perform the abortion procedure. For a doctor to be recognised as a registered medical practitioner, the following conditions must be fulfilled:
- They must possess recognised medical qualifications such as MBBS, MD, MS, etc. (A list of these qualifications can be found in the Schedule of the Indian Medical Council Act, 1956).
- They must be enrolled in the State Medical Register.
- They must have training in gynaecology and obstetrics (OB-GYN)3.
Only in case of emergency abortions, any registered medical practioner, regardless of whether they are an OB-GYN, can conduct the abortion in good faith.
If the abortion is carried out by a person who is not a registered medical practitioner, then such a person can be punished with rigorous jail time between 2 and 7 years.
It is important to note that ayurvedic, unani or homeopathic doctors, or nurses, cannot legally perform abortions.0
- Akhila Kurian Alias Akhila Ann Baby v. Union of India, WP (C) No. 27842 of 2020.
- Kavita and Another v. Post Graduate Institute of Medical Education and Research, through its Director and Others, CWP No. 11394 of 2020.
- Section 2(d), The Medical Termination Of Pregnancy Act, 1971.