Insights into Editorial: Not just a question of weeks
When a pregnancy is unwanted, a safe abortion is vital in ensuring a woman’s health and well-being. Unsafe abortions remain one of the prime causes of maternal death and disability. An abortion under medical supervision is one of the safest procedures. However, the Supreme Court of India recently 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. But this decision must be looked at in contrast to the recent landmark decision by the Supreme Court allowing an adult mother to abort her over-20 week foetus.
Abortion in India:
In India, the transition from a regime of proscription against abortion by treating it as a criminal offence liable for punishment under the Indian Penal Code (IPC) to legitimising the practice as a health and family planning measure through the enactment of the MTP Act of 1971 had been fairly easy, unlike in the West, where the movement towards legalising abortion has been tumultuous involving major heated public debates.
- 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. Notably, the Act also provides that if any of these medical eventualities is likely to arise, then the mother’s actual or foreseeable environment must also be taken into consideration.
- The MTP Act sets some limitations regarding the circumstances when abortion is permissible, the persons who are competent to perform the procedure, and the place where it could be performed. Outside the ring of protection that the Act draws, the IPC still operates.
Who has the right to abort?
- The pregnant woman has the right to adopt; she does not need anyone’s acknowledgement or support if she’s above 18 years of age and is mentally stable.
- If a woman is married, her own written consent is sufficient. Her husband’s consent is not required.
- If a woman is unmarried and over 18 years of age, she can provide her own written consent.
- If a woman is unmarried and under 18, she must provide written consent from her guardian/parent.
- If a woman is mentally unstable, a written consent is required from her guardian/parent.
- 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. The Act MTP does not mention anything about a woman’s right to terminate a pregnancy beyond 20 weeks if there are foetal abnormalities.
- The Act as it currently stands also does not permit abortion solely on the request of a woman. One important reason for this is to prevent and reduce the instances of female foeticide in the country. However, it is important to analyse and study whether the law has had the desired impact on female foeticide, especially in light of the Pre-Natal Diagnostic Techniques (Regulation and Misuse) Act, 1994 which prohibits sex-selection and prescribes strict punishment for both – the party seeking prenatal sex determination as well as the medical practitioner conducting the test.
- The MTP Act also does not address any ethical issues, but in legal regimes that do not allow abortions, the moral standpoint is that medical termination of pregnancy results in the death of a living being.
A revision of the legal limit for abortion is long overdue. The process of rethinking the 44-year-old MTP law has already taken years, but the issues go beyond the slowness of the process. In the decades since the law was first enacted, the science on the subject has made enormous leaps — with the advent of ultrasound, magnetic resonance imaging (MRI) and foetal monitoring devices, predicting the health of the baby has become more accurate and sophisticated than anything that was conceivable then.
The draft Medical Termination of Pregnancy (Amendment) Bill, which was introduced by the government in 2014, provides for abortion beyond 20 weeks under defined conditions. The bill should seriously taken up for consideration by the government. As per the draft law, the decision to allow abortion between 20 and 24 weeks can be taken “in good faith” by a healthcare provider if, among other conditions, the pregnancy involves substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been caused by rape”.
The decision to terminate a pregnancy is never an easy or mechanical decision and it takes a severe toll on the affected parties, especially the woman. There is a need to strike a balance between the rights of women to control their bodies and the legitimate interests of the state to prevent selective sex determination as well as protect the interests of the woman and the unborn foetus. The draft amendments offer a definitive step in the right direction.