Abortions: India
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Contents |
Legal provisions
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.
Proposed amendments to the MTP Act
The Supreme Court's verdict allowing a woman from Mumbai to abort her 24-week pregnancy for abnormality of the fetus that could endanger her life has brought focus back on the proposed amendments to the Medical Termination of Pregnancy (MTP) Act, 1971.
Experts have raised concerns that despite the health ministry approving changes to the law, women are made to approach the court and go through all the trauma because the amendments are yet to be passed by Parliament. “The proposed changes to the Act will save such women from going to court and hence, a delay in abortion, mental trauma as well as huge expenses,“ says Vinoj Manning, Executive Director, Ipas Development Foundation (IDF), an NGO that works on increasing women's access to comprehensive abortion care in India.
One of the crucial amendments proposed to the law dating back to 1971 would allow abortion at any time during the pregnancy for “selective“ fetal abnormality “incompatible“ with life, which cannot be detected during the 20-week gestation period.Currently , the law allows medical abortion only till 20 weeks of pregnancy .
The amendments await Cabinet approval after which the bill will be tabled in Parliament.
The Supeme Court has allowed the Mumbai woman to abort the fetus on the ground that it did not develop a skull and could endanger her life.
“Once the amendments to the MTP Act come through, women would not be forced to move the highest court for permission for termination,“ says Manning.
He adds, “The proposed amendments include strengthening access to safe abortion services by increasing the type of providers permitted to conduct an abortion after being appropriately trained, increase in the gestation limit to 24 weeks for vulnerable categories of women and of course no gestation limit to apply in case of diagnosis of severe fetal abnormalities.“
A health ministry official said the amendments would bring about incredible benefits to women.
Other amendments to the law include allowing homoeopaths, nurses and midwives to conduct non-invasive abortions with training.
‘Live-ins’ get abortion 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.“
Abortion rights for single women
The Times of India, Dec 12 2016
Govt plans equal abortion rights for single women
Sushmi Dey In a move that will make it easier for single women to safely and legally terminate unwanted pregnancies, the health ministry has recommended recognising “failure of contraceptive“ and “unplanned pregnancy“ as lawful reasons for abortion among all women, married or otherwise. At present, the law recognises these two reasons for abortion only in case of “married“ women.
The relief is part of a series of recommendations made by the health ministry for amendment of the Medical Termination of Pregnancy (MTP) Act.The proposal is likely to be taken up by the Cabinet soon af ter the ongoing Parliament session ends, sources said.
The existing MTP Act requires a doctor to indicate a reason for abortion. This could be to save the life of the wo man, in case of rape or incest, or due to the physical or mental health of the woman. Recognising the growing reality of sexually active single or unmarried women, the government's recommendations aim to widen the purview of legal abortion. Experts say the move is progressive and will give women safe and legal abortion options.
Other amendments to the law dating back to 1971 would allow abortion any time during pregnancy for “selective“ foetal abnormality , which cannot be detected during the 20-week gestation period.Currently , the law allows medical abortion only till 20 weeks of pregnancy . It will also help address the social taboo attached to sexual activity of single or unmarried women and instead allow them a right over their body .
The ministry has also recommended allowing homoeopaths, nurses and midwives to conduct non-invasive abortions with training. The proposed amendments also include extending the gestation period from 20 weeks to 24 weeks for “special categories“, which is also likely to include single women with unwanted pregnancy , apart from disabled and other vulnerable women. “Once the amendments bill is passed by Parliament, the ministry will elaborate on implementation of the law by notifying rules. That will bring more clarity ,“ an official said.
“The amendments will increase women's access to safe abortion and we are hoping the government will attempt to pass the bill in Parliament at the earliest,“ said Vinoj Manning, executive director of IPAS India, a non-profit organisation working to increase women's ability to exercise their sexual and reproductive rights, and to reduce maternal mortality .
Pregnancy period prescribed
SC allows woman to abort at 24 weeks
AmitAnand Choudhary, SC allows woman to abort at 24 weeks, Jan 17, 2017: The Times of India
Coming to the rescue of a 24-week pregnant woman facing danger to her life due to a severe abnormality in the foetus, the Supreme Court on Monday gave her permission to terminate the pregnancy though it was past the legal limit of 20 weeks.
Justices S A Bobde and L Nageswara Rao allowed the plea of a Mumbai-based 22-year-old woman to undergo abortion after considering a medical report prepared by a team of seven doctors. The doctors said the chance of the foetus -detected with anencephaly , a serious defect where parts of the skull are not adequately developed -surviving was very slim and the mother's life would be endangered if it the abortion was not carried out. The Supreme Court had appointed the board of senior doctors from King Edward Memorial Hospital and directed it to file a report about her “condition and advisability of permitting a medical termination of pregnancy“.
In recent months, the apex court has allowed termination of pregnancy beyond 20 weeks in the case of two rape victims on the basis of medical assessment that the fetus had abnormalities and there was a danger to the life of the mother.
The court directed that the termination will be done under the supervision of the board. The court said that it was not necessary to go into “medical and medico-legal aspect of the identity of the fetus and the matter is to be decided from the standpoint of petitioner to preserve her life“.
“In these circumstances, we consider it appropriate and in the interest of justice, particularly the right of the petitioner to preserve her life, that she be allowed to undergo termination of pregnancy ,“ the bench said.
The court said, “The fetus is not compatible to life outside uterus. In other words fetus would not be able to survive. Equally , rather more important, continuance of the pregnancy would endanger the physical and mental health of the petitioner“.
The woman approached the court after doctors refused to terminate the pregnancy as it was not allowed under the Medical Termination of Pregnancy Act, 1971.The law permits a woman to terminate her pregnancy till 20 weeks if two registered practitioners express unanimous opinion that continua tion of pregnancy would threaten the mother's life or the fetus has severe abnormalities.
This is the third incident in recent years when the SC has allowed a woman to abort beyond the period prescribed by law. In July 2016, SC had allowed a rape survivor's distress plea to abort her 24-week pregnancy citing serious abnormalities with the fetus.
In a similar case, a minor rape victim from Gujarat had moved the SC in July 2015 seeking termination of pregnancy even though the fetus was more than 20 weeks. The court allowed the termination on the basis of medical report recommending in favour of abortion to save her life.
Can't exceed 20 weeks even for Down Syndrome: SC
The Supreme Court the plea of a Mumbai woman to abort her 26-week-old foetus which, reports show, suffers from Down Syndrome and may be born with physical and mental abnormalities.
Sympathising with the 37year old woman, a bench of Justices S A Bobde and L N Rao said while it was sad for a mother to bring up a mentally challenged child, it could not permit her to abort it. The judges said that abortion of a fetus over 20 weeks old could be allowed only if there was a danger to the life of the mother or the fetus had no chance of survival.
The apex court passed the order on the basis of a medical report prepared by a group of senior doctors from Mumbai's KEM Hospital. The SC had directed the hospital to constitute a board to examine the woman and the fetus. According to the report, the fetus is suffering from Down Syndrome and there is a possibility that the child may be born with some physical and medical abnormalities. It, however, said there was no threat to the life of the mother or the fetus.
Accepting the findings of the report, the bench said it was not possible to allow the woman to go for medical termination of pregnancy . Pointing out that the re port did not conclusively say that the child would be born with physical or mental abnormalities and it was merely a possibility, the judges said children suffering from Down syndrome were as affectionate and lovable as any normal child and they could lead a normal life despite having some deficiencies. In these circumstances, the bench said, it was not possible to grant permission for abortion.
Senior advocate Colin Gon salves, appearing for the woman, contended that she should have the full right to terminate her pregnancy and the present law not permitting abortion above 20 weeks was not in line with norms followed across the world. He said the petitioner should be allowed to challenge the provision as a similar case was pending before the apex court. The bench thereafter tagged her case with the matter which was being examined by the court.
Trends
Under-20, urban abortions rise
The Times of India, Apr 13 2016
Mahendra Singh Cities Have 21% Pregnancy Wastage Against Rural India's 4.4%
Under-20 abortions reveal urban India's liberal attitudes
Most abortions reported in urban areas are below the age group of 20, pointing to a more liberal attitude towards sex and earlier engagement in sexual activity, reveals a government health survey.
The NSSO survey found that among all pregnancies reported, 77% in rural and 74% in urban areas ended with a live birth while abortion was only 2% in rural and 3% in urban India.
But the highest 14% abortions were seen in the youngest age-group of those below the age of 20 in urban areas.
The survey also found that pregnancy wastage was highest at 21% also in the youngest age group of less than 20 years. `Wastage of pregnancy' is defined as the `total number of pregnancies which did not result into livebirth during the reference period' per 1000 number of completed pregnancies during the same period.' Interesting ly, about 4.4% of the pregnancies were wasted in the rural areas, and it was little higher in urban areas (5.9%) despite accessibility of heath care services in cities.
A number of factors a greater readiness to report, a greater incidence, a better access to abortion services could all account for it, but further studies would be required to comment, the survey noted.
It was found that among women in the age group of 1549 years, about 9.6% in the rural areas and 6.8% in the urban areas were pregnant during the 365 days preceding the date of survey .
The survey also found that in rural India, 56% childbirths took place in public hospitals and 24% in private hospitals. In cities, around 42% children were born in public hospital and 48% in private hospitals. Reflecting lack of health care facilities in rural areas, the survey highlighted that about 20% non-institutional childbirths were reported in villages while it was at 11% in urban areas.
