Let’s Talk About The Long Overdue Reforms Needed In The Abortion Laws Of India

A 35-year-old pregnant rape victim discovers that she is HIV positive in her 17th week of pregnancy. She approaches a government shelter, an approved place to conduct an abortion, but is denied the abortion. They demand parental and spousal consent, even though under the law, a woman above the age of 18, does not need such consent.

She approaches the High Court only to have the High Court deny the request. She’s 26 weeks pregnant by the time the case reaches the Supreme Court which recognises the improper treatment she has been subject to, but ultimately denies the abortion because under the Medical Termination of Pregnancy Act, she had crossed the 20 week limit for abortion.

This illustrates how unfairly our justice system can treat a woman seeking abortion whose pregnancy has gone beyond 20 weeks. Under the law, to get an abortion the pregnancy has to be below 20 weeks. In cases where the pregnancy is above 20 weeks, the law has no room for extenuating circumstances and the law turns a blind eye to the suffering and plight of these women.

What Does A Doctors Assessment Include?

In cases of abortion below 20 weeks, a doctor who is a registered medical practitioner, has to make an assessment whether the abortion should be done or not. This assessment is made taking into consideration both the health of the women and of the fetus. Under the law, in specific cases of unwanted pregnancies, for example if a contraceptive device fails or in case of rape, the doctor is supposed to presume that the mental health of the woman has been affected.

The law elaborately deals with processes to be followed for abortions before 20 weeks, as compared to those requested beyond 20 weeks where the law is silent.

Sadly, the law only looks into these two instances and disregards any other scenario to presume mental distress while making his assessment. The law elaborately deals with processes to be followed for abortions before 20 weeks, as compared to those requested beyond 20 weeks where the law is silent.

What Are The Cases That Go To Court For Abortion After 20 Weeks In India?

In India, a review of the post-20 week cases shows that many petitioners, particularly minors, do not even realise they are pregnant until beyond the 20 week mark because of a lack of awareness of the possibility of becoming pregnant from rape or the symptoms of pregnancy. This is also prevalent in cases of minor pregnancies caused due to rape. Apart from this, a considerable delay is caused by some medical authorities/practitioners to conduct tests to judge the health of the mother and the fetus. This leads to potentially fatal delays for the mother of the child, sometimes crossing the time limit of 20 weeks.

In 2017, Sheetal found out that her fetus had Arnold Chiari Syndrome, a condition which affects the development of the brain and spine. This was a case of fetal anomaly. The doctors she had first visited gave her no indication of this fetus anomaly and by the time she found out she was already 27 weeks pregnant. She approached the Supreme Court which consulted the opinion of a medical board. Despite information showing that the chance of survival of the fetus was negligible, the medical board still advised against the abortion and the Court, dismissed the request for abortion.

In cases of pregnancies beyond 20 weeks,it is very common that, there is always a delay from either the medical authorities or medical boards and the Courts to come to a decision. That is precisely what happened with Sheetal when both the institutional checks failed. She was abducted and raped, leading to her pregnancy which only came into her knowledge after 21 weeks. This was because the medical officer at the government hospital failed to conduct a medical examination on her.

When she approached the High Court, the Court itself took two weeks to grant her permission to be reviewed by a medical board. The Board continued the tests and subjected her through physical tests and ultrasounds. Procedures were delayed to such an extent that the Board had to ultimately opine that the abortion would not be good for her health, because by this time she was 25 weeks pregnant and well over the legal limit. The High Court, being unable to take a medical call, sent it to be reviewed by All India Institute of Medical Science, New Delhi. This only prolonged the process even further and it is unclear whether she was allowed to continue with the abortion.

Apart from such cases, when there is a question of fetal impairment, rape, or sexual assault of minors, doctors/medical practitioners at the ground level usually create the problem for the women by either

• Denying them the abortion due to fear of prosecution or because they do not want to take the risk of aborting at such a stage of pregnancy.
• Forcing parental consent and spousal consent on the women.
• Delaying procedures and conducting wrong tests which leads to medical negligence.

These roadblocks in getting in abortion end up being the reason why many women in India do illegal abortions from medical practitioners who are unregistered or from nurses, ayurvedic doctors, and unani doctors. They are willing to risk their lives in an illegal abortion rather than carry that particular child to term. This was the reasoning for introducing the MTP Act in the first place, yet the law has failed the women who want abortions after 20 weeks and the practice is still prevalent till date.

What Do Courts Usually Do?

When requests for abortion after 20 weeks come to courts, it is sent to a medical board of a hospital, which makes an assessment based on the health of the woman and the fetus. After considering their opinion, the Court makes a decision but in most cases, the opinion of the woman is usually not considered. Her mental and physical distress is forgotten in the court process. Based on the pattern of case laws, courts have become the guiding policy on abortions after 20 weeks, because of the vacuum in the MTP law.

many petitioners, particularly minors, do not even realise they are pregnant until beyond the 20 week mark because of a lack of awareness.

Courts have been taking a case by case approach, sometimes granting abortions after 20 weeks and ever so often, highlighting the “woman’s mental anguish”. The method of third party authorisation (medical boards) and judicial overreach are not advantageous for the woman because their right to reproductive autonomy is neglected. In practice, therefore the only class collectively suffering at the hands of the Courts are the women.

There are enough safeguards in the law which allows for not only emergency abortions but also protects doctors who carry out abortions in good faith. Yet, the ‘delay’ and ‘time’ it takes to go to court, get requisite permissions and then go to the medical board still exists as one of the chief reasons for pregnancies crossing the legal limit of 20 weeks.

It is important to highlight another problem, that is there are no standard approach or guidelines taken into account by the courts in India. Not too long ago, Reshma, a 10 year old girl had been raped and she was 28 weeks pregnant by the time the medical authorities found out about her pregnancy. The Supreme Court granted her compensation but did not discuss her mental health nor did they allow the abortion.

This was not the approach taken in another case where, the Supreme Court had allowed the request for abortion made by 13 year old Pooja, who was 32 weeks pregnant. The Court took into consideration the reproductive autonomy of a woman and and stated that there was “foreseeable danger” to her life and that “the continuation of her pregnancy can gravely endanger the physical and mental health of the patient”.

In some cases, the courts rely entirely on the medical board’s opinion. In some others, they look into the mental state of the woman and in the rest, they deny it solely because it crossed the 20 week time limit. Thereby, highlighting the need for guidelines and standardisation.

A Woman’s Reproductive Autonomy

Though enacted to provide for the termination of pregnancies by registered medical practitioners on the basis of the decision of the woman, the Act does not shed light on the rights of a woman undergoing the abortion. Reproductive autonomy is the freedom of the woman to have as well as not have the child. This freedom does not exist in India and the power of granting an abortion has not only been given to doctors who abuse it till date, but has also extended to Courts that are making the decisions for the woman.

Throughout this entire process, is there any aspect of autonomy of a woman’s reproductive health that is looked at? The answer is no. The woman has ‘no role’ in the process of her own abortion. At the end of the day, only the doctors have the final say.

Need For Reform — Courts And The Law

Law reforms in the Abortion Act are long overdue. There should be guidelines in cases of judicial authorisation to terminate pregnancies and a case by case approach should not be followed. The right to reproductive autonomy should be read with Article 21 of the Constitution of India which protects the life and liberty of an individual and the law should do so through the provisions in the MTP.

Another suggestion for a law reform would be to allow doctors to conduct abortions after 20 weeks based on ‘good faith’ principle. There is a need to clarify that the doctors will not be prosecuted if they conduct such abortions. The law should also give guidelines on factors to be considered while terminating such pregnancies, such as — physical health, mental distress, fetal problems, reason for the pregnancy, etc. The time to reform the law is now, for the sake of all the women in India dealing with unwanted pregnancies.

Disclaimer: All the names given in this article are not the real names of the women as they are anonymous in the judgements given by Courts.

Malavika Rajkumar is a legal researcher working at Nyaaya.

Originally published at feminisminindia.com on November 21, 2018.