Revision as of 10:07, 24 September 2016

The Medical Termination of Pregnancy Act, 1971

The Indian Express, July 26, 2016

Abantika Ghosh

When were the limitations of the “legal limit” of abortion revealed?

In 2008, Haresh and Niketa Mehta petitioned Bombay High Court to allow them to abort their 26-week-old foetus who had been diagnosed with a heart defect. For the first time, the national medical narrative took note of the fact that with the advent of medical technology, pre-natal diagnosis of defects had come a long way — and some defects could be revealed after 20 weeks has passed. The Mehtas’ plea was turned down on expert advice. But the court’s observation that only the legislature could address the demand for change in the legal limit meant that India started the process of re-evaluating provisions of the Medical Termination of Pregnancy Act, 1971. Niketa, incidentally, had a miscarriage soon after the verdict.

Was the law challenged on any other occasion?

Yes. Last year, a 14-year-old rape victim from Gujarat sought and received permission from the Supreme Court to abort after the 20 weeks deadline had passed. Her petition was treated as a “special case”, meaning it could not be used as a precedent to grant permission in another case. Which is why the woman in whose favour the SC decided — identified in her petition as “Miss X” — needed to knock on the doors of the apex court afresh.

' What are the provisions of the new MTP law that is in the works?'

The draft Medical Termination of Pregnancy (Amendment) Bill, 2014, on which the Health Ministry has sought and received comments, provides for abortion beyond 20 weeks under defined conditions. As per the draft law, a healthcare provider may, “in good faith”, decide to allow abortion between 20 and 24 weeks 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 draft law also takes into account the reality of a massive shortage of both doctors and trained midwives, and seeks to allow Ayurveda, Unani and Siddha practitioners to carry out abortions, albeit only through medical means, and not surgical ones.

The draft legislation recognises that the anguish caused by pregnancy resulting from rape “may be presumed to constitute a grave injury to the mental health of the pregnant woman”, and that such an injury could be a ground for allowing abortion.

Why is it essential to change the MTP law?

Legal and medical experts feel that a revision of the legal limit for abortion is long overdue. Foetal abnormalities show up only by 18 weeks, so just a two-week window after that is too small for the would-be parents to take the difficult call on whether to keep their baby. Even for the medical practitioner, this window is too small to exhaust all possible options before advising the patient to take the extreme step.

Again, the 45 years since the enactment of the law has seen technology break new grounds — from ultrasound to magnetic resonance imaging to a range of highend foetal monitoring devices that have taken prenatal diagnosis far beyond the illegal sex determination tests that have refused to die out completely.

The rising incidence of sex crimes, and the urgent need to empower women with sexual rights and choices both in their own interest and for the sake of reducing the fertility rate as a whole, have made it imperative that the law be changed. In any case — and what is far more worrying — is the fact that the lack of legal approval does not prevent abortions from being carried out beyond 20 weeks. And they are done in shady, unhygienic conditions by untrained, unqualified quacks, putting thousands of women at risk probably every day.

‘Live-ins’ get rights of married couples

Swati Deshpande, HC extends abortion right to live-ins, Sep 22 2016 : The Times of India

Till Now, Only `Married Women' Were Allowed Medical Termination Of Pregnancies

The Bombay high court has extended to live-in relationships a pro-choice right which only married women have enjoyed so far in law. The HC held that a provision under the Medical Termination of Pregnancy Act, which currently doesn't apply to live-in relationships, should be understood to be applicable also to couples who live in the nature of a marriage.

A 45-year-old law that governs and grants women the right to abort spelled out how a married woman, who may have conceived by accident despite using birth control devices, could be permitted to terminate such pregnancy till 20 weeks, if unwanted, on the ground that its continuation would cause her mental trauma. Since the law specified “married woman“, the HC while dealing with the rights of women in prison to medical termination, said law in today's scenario of live-in relations would extend to even such women, who though not married, live in with their partner.

The judgment, salutary to women who have not tied the knot but live with a man in a relationship akin to marriage, recognised the extent to which such relationships resonate and are rising in society and the need for protec tive laws. The law says an unwanted pregnancy caused by failure of a birth control device in a marriage can be ended, but only till the foetus is 20 weeks old.

The HC was deciding a suo motu PIL triggered by a case of a woman inmate in Mumbai who wished to terminate her second pregnancy while in custody . The PIL saw a bench of Justices V K Tahilramani and Mridula Bhatkar delving into the essence of the law that legalises abortion in India -the Medical Termination of Pregnancy Act. Section 3(2)(b)(i) of the Act allows termination of pregnancy if there is risk to the life of the pregnant woman.

The judges observed that “besides physical injury , the law widened the scope of termination of pregnancy by including `injury' to mental health of the woman“. The law provides two `explanations' of what constitutes such injury . While the first points to a rape survivor and the anguish a resultant pregnancy causes, `Explanation 2' under the Act lists a pregnancy that is accidental, caused by failure of a birth control device. “Such a pregnancy , if unwanted, may be presumed to constitute grave injury to mental health of the pregnant woman,“ the law states.

“Explanation 2 should be read to mean any couple living together like a married couple,“ the court directed.“A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy . Wanted pregnancy is shared equally , however, when it is an accident, then the man may not be there to share the burden. Under such circumstances, a question arises why should only a woman suffer,“ the HC asked.

A doctor, while advising an MTP, must consider the future prospects such unwanted pregnancy holds for a woman, the judgment said.

The judges observed that there were reasons why a pregnancy is sought to be ended. “There are social, financial and other aspects attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. The right to control their own body and fertility and motherhood choices should be left to women alone.“