India is witnessing an unprecedented increase in the number of women reaching courts in order to get permission for abortions. Of the forty judgements of the Supreme Court of India relating to the Medical Termination of Pregnancy Act, 1971 (MTP Act) listed in Manupatra, more than a quarter (11) were decided in 2017. Half of these cases were decided in the past five years.
Clearly the trend shows that the law in its present form is unable to handle the demands of the society. The government had introduced a draft bill in 2014 for the amendment to the MTP Act, but the bill has not moved to the parliament since then. So, it becomes essential to study the law and the development in medicine during recent times to check whether this is the reason for the surge in the cases and if yes, whether the proposed law has incorporated essential changes.
What is the current law on abortions in India?
Currently, abortions are governed under the Medical Termination of Pregnancy Act, 1971 (MTP Act). This law allows registered medical professionals (doctors) to perform abortions in the following cases:
- If the pregnancy is less than twelve weeks old and the doctor is of the opinion that either the pregnancy is a risk to the mother or there is a risk that the child born out of the pregnancy would have serious mental and physical disabilities.
- If the pregnancy is between twelve to twenty weeks old and two doctors are of the opinion that the pregnancy is a risk to the mother or there is a risk that the child born out of the pregnancy would have serious mental and physical disabilities.
The examples of these situations are:
- When the child is conceived as a result of rape.
- When pregnancy occurs due to the failure of contraception for a married woman.
For carrying out these abortions, the doctors have to take permission from the pregnant woman or her legal guardian in case she is a minor and of unsound mind. They have to be carried out either in government hospitals or in government-approved institutions. Interestingly, the MTP Act in its present form does not prescribe punishments for such doctors who might contravene the law, although punishments under IPC for illegal abortion may apply to such doctors.
Do medical advancements allow safe abortion after 20 weeks of pregnancy?
The MTP Act was enacted in 1971. Diagnostic techniques such as MRI and CT scans were invented in the late 1970s. Medical techniques for abortion have advanced well within this time. A normal abortion can take place till the fetus is 24 weeks old. Late term abortions are defined as those which occur after 24 weeks of pregnancy. In India, the Supreme Court of India recently allowed abortion for a 13-year-old girl with a 32-week old pregnancy, reported the Hindustan Times.
Countries like UK, Australia and Taiwan allow late-term abortions under their laws. UK and Australia even have guidelines on the standard protocols to be applied in these cases by the doctors. WHO also recognises abortion beyond 24 weeks and have guidelines for the same.
Why shouldn’t Supreme Court hear these matters?
The Supreme Court judges have observed and acknowledged the amount of time wasted in cases of MTP due to court proceedings, reported the India Today. Because the court cannot make a decision itself, it has to set up a Medical Board for each case with doctors who examine the applicant and advise the court in these matters. There are concerns about no guidelines existing for these boards presently, which can lead to bias.
Various Supreme Court cases on these matters have yielded different results. In one case, after the Supreme Court allowed abortion of a 13-year-old, she ended up giving birth two days later, reported the Indian Express. According to the Hindu, Supreme Court refused abortion in a case of 27 week old pregnancy because it might lead to ‘live birth’, which resulted in birth of a malformed child whose prognosis was difficult to determine by the doctors.
The way forward
India had introduced the draft bill for MTP and opened it for public comments in 2014. The bill proposed increase in the time period for abortions to 24 weeks, and noting the shortage of trained medical staff, proposed Ayurveda, Unani and Siddha practitioners to carry out abortions, albeit only through medical means, and not surgical ones. However, this law does not state the protocol if a woman seeks abortion after 24 weeks of pregnancy. Another drawback in the proposed legislation is the lack of objective guidelines for the doctors for conducting such procedures.
According to the Indian Express, the Health Minister of India, Mr. JP Nadda stated in the Parliament that the draft Medical Termination of Pregnancy Bill has gone to the cabinet after looking into the comments given by the National Commission for Women in March 2017. This draft aims to describe the conditions where abortions can be done more clearly.
Making a change in a 45-year-old law requires a comprehensive analysis of present situation. The new law must ensure that every woman who needs to get abortion does not have to approach a court to get the permission. This can be done by provisioning for setting up Medical Boards which are regulated by law, instead of having been set up on a case to case basis. Specific guidelines are also required for doctors to conduct treatment in these cases to avoid ambiguity.