In the last week of April, 2019, the Madras HC took suo motu cognisance of a newspaper report on abortion laws in the country for the amendment of the Medical termination of pregnancy Act, 1971.

At present, the legally permissible gestational period for abortion or termination of pregnancy is up to a period of 20 weeks.

In 2014, a draft of the amendments to the archaic Medical termination of pregnancy Act, 1971 was proposed.  The main amendment - the extension of the abortion period to 24 weeks.

Such an amendment has been proposed to address the increasing rate of children being born with abnormalities and or defects and the challenges faced by parents in raising such children and unwanted pregnancies of minor girls and or rape survivors.

The issue is not exclusively medical or legal. It is a combination of both with a moral and ethical angle to it.

The Medical aspect of abortion

Abortion is done either surgically by removing the foetus from the uterus or by inducing medicines that will expand and contract the uterus to push the foetus out.

Doctors especially gynaecologist’s world over state that many abnormalities/defects such as ones to the brain and spine cannot be fully detected within 20 weeks. While anomaly can be detected in an ultrasound scan in the early stages of pregnancy, the intensity and impact on the foetus can be ascertained only after 20 weeks of pregnancy.

There are several rural and under developed villages with no access to medical infrastructure and facilities. It then becomes challenging for expectant mothers to detect any abnormality before 20 weeks. By the time it is detected, invariably 20 weeks are crossed.  Expectant mothers who have access to healthcare facilities would try other methods such as advanced detection and correction of abnormalities. Abortion is the very last resort. By that time it is too late.

The medical fraternity is also of the view that if risk is indeed involved in abortion, it may not change even after 20 weeks.

The legality of abortion

At present, the upper gestational limit for termination of pregnancy by way of abortion is 20 weeks. Any termination beyond the said period requires clearance from Court. Due to the increase in number of cases seeking permission with the Court, the Supreme Court urged the Centre and States to form medical boards to assist courts take an objective view in such cases. The Courts would rely on report(s) submitted by medical boards set up by various hospitals. Such medical Boards would constitute a host of experts in the relevant medical specialities. Based on the report, the Court would allow or deny permission for termination of pregnancy beyond 20 weeks.

In 2014, the Union health ministry drafted amendments to the MTP Act, 1971 primarily with a view to help women with pregnancies which are high risk as they are diagnosed with abnormalities and fatalities. The main amendment is to increase the legally permissible termination gestational period up to 24 weeks. However, these amendments are still pending approval by the government even after 5 years.

Pending approval of such amendments, women have been left with no alternative but to approach courts for permission to terminate pregnancies. On receipt of such petitions, Courts rely on reports submitted by Medical boards and then decide.

While deciding in favour of the termination, Courts will have to absolutely be convinced that: (i) there is irreversible foetal abnormality or anomaly; (ii) the decision to terminate is voluntary decision by the pregnant woman herself (iii) permitting such termination will not be detrimental to the health and life of the woman.

In 2017, the Kolkata HC granted permission to a woman to terminate her 26 week pregnancy. The woman had approached the Court seeking permission for such termination on the grounds that the foetus was detected with a cyst in the brain which could render the foetus neurologically challenged for life and also a possible early death. The HC granted permission after the medical board and the Director of the hospital confirmed the same. The HC was convinced that the by allowing the pregnancy to continue, it could jeopardise the life of the child as well as the mother.

Moral and ethical angle to abortion

The issue of abortion has been debated the world over since time immemorial. While it is not religiously permitted on the grounds that life given by God cannot be taken away by humans and suffering cannot be inflicted on a foetus which is considered a human being at 20 weeks, social activists argue that abortion should be integral part of the fundamental right of choice of women. Such right cannot be curbed by religious or other authorities. This should be all the more considered for foetus which are detected and diagnosed with fatal abnormalities that result in death or permanent disability of the child. Such physically or mentally challenged children face social stigma as they grow up. There are also cases of unwanted pregnancies of minor girls and rape survivors.

Recently, a 19 year old gang raped victim who became pregnant due to repeated sexual assaults died due to complications arising out of unsupervised abortion on her 8 month old foetus by taking an overdose of pills to get rid of the foetus. Such was the desperation of the woman and her family not to continue with the pregnancy fearing ostracizing and social stigma.

Need of the hour

Bureaucratic delays are costing lives. It is time the government approves the amendment of the Medical termination of pregnancy Act, 1971. In doing so, the government can take a leaf out of European countries which permit termination of pregnancy even after 20 weeks. Even better, countries such as Canada and Germany allow for termination at any time if it is based on social or medical reasons. The clock is ticking. The foetus is growing.