Abortion law in India pays more attention to childbirth than it does childhood or motherhood

By Tanya Manglik

On Thursday, the Supreme Court began hearing a petition by a 26-year-old-woman seeking an abortion in the 24th week of her pregnancy, considered too late by Indian law. In her petition, the woman also sought to challenge the validity of the Medical Termination of Pregnancy Act (MTP), 1971, according to which a woman is allowed an abortion only up to the 20th week of her pregnancy. Her case is one that should be followed with interest, especially as recent cases seeking permission for late abortions from Indian courts have met with differing outcomes: While in some cases courts have granted permission for an abortion, in others, women have been forced to go through with the pregnancy, even if it took place as the result of rape.

Currently, Section 3 of the Act only allows for termination of a pregnancy up to the 20th week when there is a danger to the life or risk to physical and mental health of the woman, on humanitarian grounds, such as when pregnancy is the result of rape, or if there is “substantial risk” that the child will be born with serious mental or physical abnormalities. Senior Advocate Colin Gonsalves, who is representing the petitioner in the Supreme Court, said that the present case is urgent because the life of the woman is in danger. She has said that her ex-fiance raped her on the false promise of marriage. The foetus also has anencephaly, a birth defect in which a baby is born without parts of the skull and brain.  The woman, who comes from a poor family, argued that her physical and mental health was at risk, and in the petition contended that the 20-week ceiling was, “unreasonable, arbitrary, harsh, discriminatory and violative of the right to life and equality.” The petition also sought an order to set up expert panels at hospitals that provide abortions to pregnant women and girls who are survivors of sexual assault and have passed 20 weeks.

There have been other cases of rape survivors asking courts to allow an abortion after 20 weeks. In 2015, the Punjab and Haryana High Court rejected the plea of a 14-year-old rape survivor to terminate her 24-week pregnancy, saying going ahead with the abortion put her life at greater risk than continuing with the pregnancy. In another judgment the same year, the Gujarat High Court rejected the abortion plea of a 24-year-old who was abducted from her village in Botad and raped. She escaped after six months, but her husband and in-laws refused to take her back. The male judge presiding over her case said there was no question of allowing an abortion as the seven-month foetus had a high chance of survival, going on to say, “I know the pain, agony and stigma in this case…” Forced to give birth to her rapist’s child, the woman refused to keep it and handed over the newborn to the state government. In 2008, the Bombay High Court refused a petition by Niketa Mehta for abortion of a 26-week foetus with a serious heart defect.However, the same Gujarat High Court that denied the 24-year-old woman an abortion in 2015 agreed soon after to grant permission for the termination of pregnancy in a 14-year-old girl whose plea for abortion had already been rejected twice. The girl, a rape survivor, was in the 24th week of her pregnancy, and doctors stated in a report that the girl was “psychologically devastated” and “physically too weak to deliver a child.”

Some medical experts in India have been recommending that abortions be allowed beyond 20 weeks. This is in line with the law in some countries like the UK and Singapore, where abortions are legal up to 24 weeks into a pregnancy. In fact, in 2014, after pushing from doctors, activists and the National Commission for Women, India’s Ministry for Health and Family Welfare proposed amending the MTP Act to allow abortion up to 24 weeks into a pregnancy. At the time, a doctor told DNA, “We generally ask a patient to undergo tests around the 18th week to find abnormalities. Some reports take three weeks and we lose out on the MTP cut-off time. A little extension will be a boon to a lot of women.”

In 2009, a Mumbai-based doctor sought amendment of the MTP Act, a case that the Supreme Court is still hearing. In 2014, a bench of the Supreme Court admitted a petition by the Human Rights Law Network (HRLN) which challenged the constitutional validity of the 20-week limit on behalf of two women who were identified as Mrs X and Mrs Y, Mrs X was informed by her doctors that the foetus would not survive, but the court rejected her plea at 26 weeks of pregnancy, and she was forced to carry the child who died three hours after birth, and after three days of excruciating labour pains. Mrs Y was told in her 19th week that some of the foetus’s brain tissue might have been missing and test results would only come out by the 20th week, so she was forced to terminate the pregnancy without full knowledge of the abnormality because of the deadline imposed by the MTP Act. HRLN argued that the 20-week limit violated Article 14 (Right to Equality), Article 19 (Right to Freedom), and Article 21 (Right to Life) of the Constitution of India.

Currently, the law on termination of abortion pays more attention to childbirth than it does childhood or motherhood. But here’s the part of the petition the Supreme Court is currently hearing that has wide significance: once more, it isn’t just asking that the woman in question be allowed an abortion. It’s challenging the very constitutional validity of the MTP Act, and asking that the section of the Act with 20-week limit be declared unconstitutional, or be read down.

The Ladies Finger is a leading online feminist magazine.