Abortions: India
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History
1971: How India changed its mind on abortion
Abhilash Gaur, June 29, 2022: The Times of India
Through the 1950s, Government of India wasset against the idea oflegalising abortion. On February 12, 1959, thenhealth minister DP Karmarkar made it clear in RajyaSabha: “Government does notpropose to introduce legislation for legalising abortion. ”Abortion had been acriminal offence in India foralmost a century, ever sincethe British Offences againstthe Person Act 1861 becameapplicable to India throughThe Indian Penal Code in1862. Exceptions were madeonly if the pregnancy posed arisk to the life of the mother. In the original British law,both procuring and performing an abortion were punishable with a life term, but bythe 1950s the jail term was of3 to 7 years. However, if thewoman died during the operation, the abortionist couldbe jailed for 10 years. So whydid the government decideto review this stringent lawin the 1960s? The answer canbe found in the report of theShantilal H Shah committeethat was appointed in 1964to examine the question oflegalising abortion.
Law observed in the breach
Like all stringent laws – abolition comes to mind fi rst – the law against abortion was mostly observed in the breach. Abortions had been done around the world before modern medicine arrived. The Venetian traveller Niccolao Manucci has written about an attempt in theharem of Aurangzeb’s sonBahadur Shah, a. k. a. ShahAlam-I. The prince’s favourite wife Nur-un-nissa Begumhad taken some drug to aborther fi fth child. “What shehad taken produced no effect, and inher husband’spresence sheasked me fordrugs for thatpurpose,” Manucci writes. Because traditionalknowledge about inducing amiscarriage was widespreadin India, quacks performedhundreds of thousands ofillegal abortions every yearacross the country. And thiswas a big problem in termsof lost lives and resources. The committee’s 1966 reportmentions that for every 1,000people in India, there were39 births every year and 13abortions – 5 of which werenatural (miscarriage) and8 induced. So, the countrywide number of inducedabortions in a populationof 50 crore would have beenaround 40 lakh. While conservatives would have raisedhell over the ‘killing’of 40 lakh unborn children, the committeewas concerned aboutthe uncounted deathsof mothers who hadbeen operated upon byquacks in unhygienicconditions. “High mortality rates related to il legal abortions seems to bean important plea for thelegalisation of abortion,”it wrote. There was alsothe question of long-termhealth complications arising from illegal abortions. A 1945 study in Francehad found that 61% of women who had anillegal abortion sufferedcomplications. Instead of doing simple abortions underaseptic conditions, hospitals had to use their scarceresources to clean up themess created by quacks. So,on purely medical and legalgrounds, the panel was clearthat: “A law which rigidly prohibits something which nevertheless continues as a fairly widespread practice in the community is one that requires reexamination, and change, if necessary. ”
Nod To Changing Times
The medical case for legalised abortion was clear, but the committee also had to weigh its social, moral and ethical implications. The biggest argument against abortion was that it amounted to “taking the life of a sentient being… The law on abortion was built on the regard for protecting the helpless foetus…”But the committee recognised the conflict between this societal view and the will of the woman seeking an abortion, and it was sympathetic to her. “When the individual woman (with or without the concurrence of her partner) feels that a particular pregnancy is intolerable…. A point involved in such a situation is whether a woman should not be the master of her own body and decide the question of motherhood for herself. ”It took a similarly progressive stand on the fear that easy abortions would promote promiscuity. It said illegal abortions were mostly sought by married women who had more children than they could support, and the loosening of sexual morals was related tothe greater opportunities for men and women to interact in a changing society. At a time when India wastrying to urbanise and growindustrially, the committeesaid, “It is not possible to tryto utilise modern scienceand technology for the betterment of economic conditions for the masses, and atthe same time to preserve unchanged traditional ways of family organisation and life. ”The committee gave itsreport on the last day of 1966. After 5 years of further consultations and drafting, itsrecommendations led to theMTP Act 1971 that increasedthe conditions under whichabortion was legal. It was asmall step for the law, but agiant leap for womankind.
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.“
HC/ 2019: Abortion of abnormal foetus allowed even beyond 20 weeks
July 16, 2019: The Times of India
Abortion of abnormal foetus can't be denied even if gestation is beyond 20 weeks: HC
NEW DELHI: Right to terminate an abnormal pregnancy cannot be denied merely because gestation has continued beyond 20 weeks, the Delhi High Court has said while allowing a 25-week pregnant woman's plea to abort her foetus which had enlarged kidneys and was not expected to survive.
A bench of Chief Justice D N Patel and Justice C Hari Shankar said the section of the Medical Termination of Pregnancy Act which prohibits abortion after 20 weeks of pregnancy even if the foetus is abnormal, and the provision which relaxes this restraint if there is an immediate threat to the life of the mother, have to be considered cumulatively and not in isolation.
"Seen thus, we are convinced that, even in a case where the condition of the foetus is, as in the present case, incompatible with life, the rigour of section 3(2) deserves to be relaxed, and the right to terminate the pregnancy cannot be denied merely because gestation has continued beyond 20 weeks.
"Law, needless to say, cannot be construed in a manner incompatible with life," the court said Friday and permitted the woman to terminate her pregnancy.
The bench, while allowing her plea, also took into account the report of the medical board constituted by AIIMS on the high court's direction.
The woman, in her petition filed through advocate Sneha Mukherjee, had challenged the Constitutionality of sections 3(2)(b) and 5(1) of the Medical Termination of Pregnancy Act, 1971.
While section 3(2)(b) of the Act prohibits termination of a pregnancy of over 20 weeks, section 5(1) allows abortion if there is an immediate threat to the life of the mother.
The petition had contended that the 20 weeks stipulation for a woman to avail abortion services under section 3(2) (b) of the Act may have been reasonable when the section was enacted in 1971 but has ceased to be reasonable today where technology has advanced and it is perfectly safe for a woman to abort at any point during the entire period of pregnancy.
"Secondly, determination of foetal abnormality in many cases can only be done after the 20th week and by keeping the ceiling artificially low, women who obtain reports of serious foetal abnormality after the 20th week have to suffer excruciating pain and agony because of the deliveries that they are forced to go through," the plea had said.
The ceiling of 20 weeks is therefore "arbitrary, harsh, discriminatory and violative of Articles 14 and 21 of the Constitution of India", it had contended.
The plea had challenged section 5 of the Act to the extent it states that termination of a more than 20-week pregnancy be permitted only if it was immediately necessary to save the life of the mother.
It had claimed that "as written, the MTP Act encourages desperate women, who learn about a foetal abnormality after the 20th week, to seek out unsafe abortions from untrained medical personnel".
Illegal abortions are the third leading cause of maternal death in India and account for 13 per cent of maternal deaths worldwide, the petition had said.
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 .
Unwed women
Dhananjay Mahapatra, July 22, 2022: The Times of India
New Delhi: The Supreme Court filled a legislative vacuum in the Medical Termination of Pregnancy Act and relevant Rules to confer on an unmarried woman the right to terminate a 20-24 week unwanted pregnancy, if medical experts certified its safety.
“Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom,” said a bench of Justices D Y Chandrachud, Surya Kant and A S Bopanna. It asked the AIIMS director to depute medical experts to examine an unmarried Manipur girl, deserted by her partner when she was 20 weeks pregnant, and determine whether it is safe for her to abort.
The woman was denied permission to terminate the pregnancy by the Delhi high court on the ground that unmarried girls were not included in the provisions of the MTP Act. The HC had only ag- reed to examine the legality of denial of right to unmarried women to terminate a 20-24 week pregnancy. The SC said making the petitioner suffer an unwanted pregnancy would be contrary to the intent of the law and that she should not be denied its benefit only because she is unmarried.
Raped minors should get abortion permission fast: SC
AmitAnand Choudhary, August 26, 2017: The Times of India
The Supreme Court said that minor rape victims should not be forced to knock on the doors of a court for getting permission to terminate pregnancies arising out of sexual offence and favoured setting up of a trust for the benefit of Chandigarh-based 10-year-old rape survivor who recently delivered a child after being denied abortion.
A bench of Justices Madan B Lokur and Deepak Gupta said that crucial time got wasted in court proceedings and it became too late and risky to allow the rape survivor to abort forcing her to deliver the child. The court said that in such cases medical practitioners should take a pro-active steps to come to the rescue of the victim.
The court agreed with the submission of senior advocate Indira Jaising who contended that pregnancy was also life threatening in case of minor girl and it was the duty of doctors to allow her to undergo abortion. “The provisions of Medical Termination of Pregnancy (MTP) Act are not properly understood by doctors and they are afraid to help the victims in abortion fearing criminal prosecution under Section 312 of Indian Penal Code,“ she said.
Section 312 says that whoever voluntarily causes a woman with child to miscarry , shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Referring to the provision, Jaising said that the penal provision was not applicable in case of minor child as her pregnancy was also life threatening and abortion was only to pave the life of the victim.
After a brief hearing, the bench said that it would examine the larger issue pertaining to minor rape victims and asked Jaising to submit a scheme for creating a trust or foundation to take care of the 10-year-old child.
The court said that money would be deposited in the trust which would meet medical and day-to-day requirement of the victim, her child and family members.
The bench also directed that identity of the victim, her child and her family members would not be made public and ordered the her medical report be kept in a sealed cover.It also directed Chandigarh's legal service authority to immediately disburse amount of Rs 1 lakh to her. The girl had been raped several times, allegedly by her maternal uncle.She and her family members came to know about the pregnancy when she went to see the doctor for stomach pain and by that time the foetus was about 26-weeks old.
2017: SC upholds woman's right to abort
Dhananjay Mahapatra, SC upholds woman's right to abort, October 28, 2017: The Times of India
Junks Man's Plea Seeking Damages From Wife For Abortion Without His Consent
The Supreme Court has dismissed a man's petition seeking damages from his estranged wife for undergoing abortion without his consent, and ruled that an adult woman had an unimpeachable right to give birth or terminate pregnancy .
Terming the abortion, to which he had objected, “illegal“, the husband had also demanded compensation from the woman's parents and brother, and two doctors. The Punjab and Haryana high court had dismissed the husband's plea saying termination of pregnancy was the sole prerogative of the woman.
An SC bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud upheld the decision of the HC, which had said, “Keeping in view the strained relations between the husband and wife, the wife's decision to terminate the unwanted fetus was right. The termination of pregnancy had not soured the relations between the two...So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting pregnancy terminated under the (Medical Termination of Pregnancy) Act.“
The CJI-headed bench further fortified the HC ruling by adding, “She is a mother and an adult who says she did not want the pregnancy .How can she or others be made liable for it? Even a mentally challenged woman has a right to terminate her pregnancy . How can parents and doctors be made liable?“ The couple got married in 1994 and had a son in 1995. Due to discord, the wife and son had been staying with her parents in Chandigarh since 1999. During pendency of the wife's petition seeking maintenance, the Lok Adalat in Chandigarh had mediated, and persuaded the couple to live together in the husband's house in Panipat.
In November 2002, they started living together and in January 2003 discovered that she was pregnant. As the relationship showed no signs of improvement, the woman wanted to terminate the “unwanted“ pregnancy . The man objected. She contacted her parents, who took her to Chandigarh. The husband refused to sign the hospital papers for medical termination of pregnancy but the woman went ahead with the abortion at a Chandigarh hospital.
The man filed a civil suit against his wife, her parents and brother, and the doctors for recovery of Rs 30 lakh towards damages on account of mental pain, agony and harassment. He argued that the termination of pregnancy without any medical need and without the consent of the unborn child's father was illegal under the MTP Act.
The doctors appealed against this in the Punjab and Haryana HC, which dismissed the suit before the trial court. The HC said, “This is a most unfortunate case where a husband has brought privileged acts... of husband and wife in the court.“
“If the wife has consented to matrimonial sex... it does not mean that she has consented to conceive a child,“ the HC said, “It is the free will of the wife to give birth to a child or not. The husband cannot compel her to conceive and give birth to his child...“
“The woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared... to give birth to a child. Unwanted pregnancy would... affect the mental health of the... woman.“
The HC had ordered the husband to pay a cost of Rs 25,000 to each respondent.
SC, 2022: it is a right of married and unmarried women
Sep 29, 2022: The Times of India
NEW DELHI: In a landmark judgment, the Supreme Court said that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.
The court also said that that law cannot be static and should be evolved with changing times, adding that non-traditional relationships, like live-in, should be recognised under the law.
A bench of Justices DY Chandrachud, JB Pardiwala and AS Bopanna delivered the verdict on the interpretation of the MTP Act, and whether unmarried or single women can be allowed like their married counterparts the benefit of abortion up to 24 weeks.
The top court said the distinction between married and unmarried women under the abortion laws is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married woman are sexually active.
'Rape includes marital rape for purpose of MTP Act’
The top court also said that the meaning of offence of rape must include marital rape for the purpose of the MTP Act.
Observing there is a need to "fine-tune" the provisions in the MTP rules, the top court had also said it would like to add a category of women, who suffer desertion irrespective of marital status, to the seven categories of women eligible to seek abortion till 24 weeks of pregnancy.
The Centre, represented by additional solicitor general Aishwarya Bhati, had told the top court that discrimination, if any, is not in the Act passed by Parliament and if the court is willing to intervene, then it should do so in the MTP Rules, 2003.
Bhati, appearing for the Centre and assisting the court on the issue, had said there is no discrimination under the MTP (Amendment) Act of 2021 and that categorisation has been provided in the relevant rules under the Act.
She had said experts have their own views on these issues and according to them categorisation has been done to avoid the misuse of laws including the Pre-Conception and Pre-Natal Diagnostic Techniques (PC-PNDT) Act due to sex determination of the foetus. "One thing, we should make it clear that we are going to draft our judgement in such a way that we are not going to dilute the provisions of PC-PNDT Act", the court had said.
On August 23, the apex court had said it would interpret Medical Termination of Pregnancy (MTP) Act and the rules to eliminate the discrimination between married and unmarried women for allowing abortion till 24 weeks of pregnancy.
On July 21, the top court had allowed a 25-year-old to abort her 24-week pregnancy arising out of a consensual relationship.
(With inputs from PTI)
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.
June 2017/ SC allows 25 week pregnant to abort
A 25-week pregnant woman from Kolkata stares at the toughest decision of her life -whether or not to undergo abortion. The Supreme Court asked her to take a final decision after perusing the report of a medical board which examined her and the health of the foetus.
Sarmishtha Chakraborty , 33, had approached the apex court seeking permission to abort as the foetus had developed some abnormality . The SC had set up a board of doctors to examine her and the foetus.
The Medical Termination of Pregnancy Act, 1971, permits abortion till the foetus is 20 weeks old. Many women discover problems with their pregnancies after 20 weeks and several have moved the SC seeking permission to abort.
Chakraborty had sought the court's nod to abort on learning that the foetus had congenital problems. She attached a report from renowned cardi ac surgeon Dr Devi Shetty which said the child, if born, might suffer from congenital problems and may not survive. On June 23, the SC appointed a medical board of seven senior doctors of SSKM Hospital in Kolkata to examine her.
Chakraborty has also challenged the constitutional validity of Section 3(2)(b) of the MTP Act which allows abortion only up to 20 weeks. She told the court that abnormalities in foetus were detected only at a late stage of pregnancy and a woman should be allowed to abort beyond the permissible time period. “The ceiling of 20 weeks is arbitrary and discriminatory ,“ she said in her petition. The SC, on the last hearing, had agreed with her contention and said the law “must be stretched“ to make it “meaningful“ by allowing abortion beyond 20 weeks.
August 2017: SC allows abortion of 26-week foetus without head
Woman gets SC nod to abort 26-wk-old fetus,, August 10, 2017: The Times of India
The Supreme Court allowed a woman to terminate her pregnancy, relying on a medical report that the 26week-old fetus was without a skull and would not be able to survive.
The medical board report suggested if the pregnancy was allowed to run its full course, it could pose severe mental injury to the 26-year-old woman.
The medical board of Mumbai-based Sir JJ Hospital, where the woman was examined, said that she wanted to terminate the pregnancy as the fetus was not likely to survive and it was causing immense mental agony to her.
“We consider it appropriate in the interest of justice and particularly , to permit the petitioner (woman) to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971,“ a bench comprising Justice S A Bobde and Justice L Nageswara Rao said.
“The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull,“ the bench noted in its order.
The court was also informed that the woman understood that her fetus was abnormal and the risk of mortality was high. It directed that the termination of pregnancy would be performed by the doctors of the hospital where she underwent the medical check-up.
The woman had moved the court for permission to terminate her pregnancy .Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act prohibits abortion of a foetus after 20 weeks of pregnancy.
30-weeks for foetus with rare chromosomal disorder
January 9, 2022: The Times of India
NEW DELHI: Delhi High Court has permitted a woman to terminate her over 30-week pregnancy as the foetus had a rare chromosomal disorder. Had she given birth, the child would have such substantial abnormalities, it said.
“If the woman is forced to continue with the pregnancy, she will be in constant fear about the high odds of a stillbirth. Even if the infant is born alive, the mother would be bearing the heavy pain of knowing the child can die within a few months,” the high court said.
Justice Rekha Palli said there were certain risks to the petitioner in undergoing termination of her pregnancy at this stage, but when considered in light of the medical opinion, which clearly suggests that the foetus is suffering from a rare chromosomal disorder, the compelling reason for her to seek permission to end the pregnancy was not difficult to understand.
The court was informed by the woman, who was present at the hearing, that she had been explained the risks involved in the procedure.
“I, thus, have no hesitation in holding that this is a fit case where the petitioner should be granted permission to undergo medical termination of her pregnancy at a medical facility of her choice. However, the same shall be done at her own risk and consequences,” the court said.
According to the petition, the foetus was suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis.
2017, Sept: SC OKs abortion of 32-week foetus of 13-year-old girl
The Supreme Court permitted termination of a 32-week-old pregnancy of a 13-year-old rape survivor from Mumbai making it the oldest fetus to be terminated on judicial orders while the law permits abortion of up to 20-week old fetus.
Solicitor general Ranjit Kumar attempted to register the Centre's protest saying the pregnancy is just four weeks away from maturity , indicating that it would be inadvisable to permit termination of pregnancy as the baby in the womb is well formed and has distinct rights. But, a bench of Chief Justice Dipak Misra and Justices Amitava Roy and A M Khanwilkar decided to go with the wish of the Class VII student who did not want to carry on with the pregnancy resulting from a sexual assault.
The FIR lodged at Charkop police station on August 9 by her parents, on finding out that their daughter was 28-week pregnant, mentioned about sexual assault leading to pregnancy but did not indicate who the culprit was. The bench decided to go by the report of the panel of doctors from J J Hospital, Mumbai, which stated that the pregnancy could be terminated though there was inherent dangers to the life of the mother.The SC asked the girl to be admitted to the hospital on Thursday for doctors to examine her and carry out the termination procedure “preferably“ on Friday and directed Maharashtra additional advocate general Nishant Katneswarkar to inform authorities to make necessary arrangements.
The Medical Termination of Pregnancy Act, 1971, permits abortion up to 20 weeks after which termination is allowed if the pregnancy posed danger to the life of mother or if it was certified by two registered medical practitioners that the fetus is deformed or has abnormalities making it difficult to survive after birth.
2020: Abortion limit raised to 24 weeks
January 29, 2020: The Times of India
NEW DELHI: The Union Cabinet approved extending the upper limit for permitting abortions from the present 20 weeks to 24 weeks.
The Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971.
The Bill will be introduced in the ensuing session of Parliament. While addressing the media after the Cabinet meeting, Union Minister Prakash Javadekar said the upper limit for permitting abortions has been extended from the present 20 weeks to 24 weeks.
He also said that this will ensure safe termination of pregnancies and also give women reproductive rights over their bodies. The extension to 24 weeks will also help victims of rape, girls with disabilities as well as minors, who may not realise they are pregnant until later, he said.
"In a progressive reform and giving reproductive rights to women the limit of 20 weeks of medical termination of pregnancy has been increased to 24 weeks. This is important because in first 5 months there are cases where the girl concerned doesn't realise and has to go to court. This was discussed with various stakeholders.
"This will reduce maternal mortality," he said.
2017, November: HC clears abortion of 25-week foetus
Swati Deshpande, In a 1st, HC OKs abortion of 25-week fetus, November 7, 2017: The Times of India
Less than a month after the Supreme Court said women could directly approach the high courts for termination beyond 20 weeks of pregnancies with foetal abnormalities, the Bombay high court on Monday for the first time granted permission to a 28-year-old who is over 25 weeks pregnant.
Mumbai's Priti Rawal moved court last Friday when she was over 22 weeks pregnant, saying her fetus had multiple neurological and skeletal abnormalities, which reduced its survival chances at birth. She pleaded she ought not to have to live with the trauma of continuing the pregnancy given the potential risks her child would face. The law bars women from terminating pregnancies beyond 20 weeks. The HC directed a JJ Hospital panel to examine her, which submitted that the fetus had “substantial risk of serious physical handicap“, which is a criterion for termination of pregnancies between 12 and 20 weeks.
2021: HC allows MTP After 22 Weeks on mental retardation ground
August 18, 2021: The Times of India
The Kerala high court has allowed medical termination of pregnancy (MTP) for a woman with slight mental retardation whose fetus was diagnosed with Klinefelter Syndrome, a rare but non-life threatening genetic condition.
Justice PB Suresh Kumar issued the order on a petition filed by the 28-year-old woman from Ernakulam who was 22 weeks pregnant. She approached the court since the outer limit for MTP prescribed under the MTP Act is 12 weeks and hospitals were insisting for a court order. The petitioner contended that continuing with the pregnancy would involve risk to her life and that there is a substantial risk that the child will be born with physical and mental abnormalities. Apart from mild mental retardation, the petitioner suffers from visual disturbances, seizures and weakness of the left lower limb with a permanent disability of 55%.
In the judgment, the court held that even though the medical board has opined that Klinefelter Syndrome is not a life-threatening disorder, continuation of the pregnancy would involve injury to the physical and mental health of the mother.
According to the MTP Act, termination of pregnancy beyond 12 weeks is allowed if a medical board thinks that continuation of the pregnancy poses a risk to the life of the woman or of grave injury to her physical or mental health.
2021: 24-weeks in special cases
Sep 26, 2021: The Times of India
From: Sep 26, 2021: The Times of India
The Union health ministry issued a notification stating the Medical Termination of Pregnancy (Amendment) Act, 2018, that extends the time limit for abortion from 20 weeks to 24 weeks has “come into force”. However, activists say the law needs “fine-tuning’’.
The amendment does not uniformly extend the 24-week deadline to all women. It applies only to rape survivors, minors and pregnancies with fetal abnormalities.
“The most commonly cited reason for abortion is contraception failure. The time limit for this remains 20 weeks,” said Mumbai gynecologist Nikhil Datar. Datar, who began the movement for changing the time limit of medical termination of pregnancy in the year 2008, said, “I am not planning to withdraw the case from the Supreme Court as there is still some work left to be done.”
Lawyer Anubha Rastogi said, “We were hoping the amendment would be in the form of an acknowledgement of women’s rights, but it has not happened so far.’’ The amended law also is not yet in sync with many other legislations covering the rights of the disabled, mentally ill among others, she said.
She further pointed out, “The rules stating whom the new time limit applies to need to be properly defined. Earlier, doctors would use their medicinal background to assess if continuing a pregnancy would adversely affect a woman’s health, but there are no guidelines yet.’’ In the last five years, over 300 cases have been filed by women seeking medical termination beyond the then permissible limit of 20 weeks. “A system was created by courts to direct such pleas to a medical board. With the new amendment coming into force, we need to set up such linkages again. A guidance note or a framework has to be there,” said Datar.
In 2008, Datar first moved Bombay HC and then the SC when his patient, Nikita Mehta, wanted to terminate her 24-week pregnancy after a scan showed cardiac anomalies in the fetus. While Mehta didn’t get permission to terminate the pregnancy and lost her baby, Datar continued with his plea to extend the 20-week time limit.
2022: 26 week MTP if doctors certify baby will not be born alive
Rosy Sequeira, Sep 18, 2022: The Times of India
MUMBAI: In an unusual and conditional order, the Bombay HC permitted a woman to medically terminate her 26 weeks pregnancy only if the doctors confirm that the baby may not be born alive after the procedure.
“In case the doctors are of the opinion that the baby may not be born alive at the time of terminating pregnancy, the petitioner is permitted to terminate the pregnancy,” the bench directed.
The woman (21) had moved the HC as her case does not fall under categories of women eligible under MTP (Amendment), 2021, from 20 to 24 weeks. Her pregnancy was a result of a consensual act and due to failure of a contraceptive device.
The JJ Hospital medical board’s September 8 report said there was no abnormality in the fetus or in her. It said pregnancy was 27 weeks and termination at “this stage will result in a pre-term viable baby requiring intensive care management.”
On September 13, the HC directed the board to re-examine her on the length of pregnancy, noticing a discrepancy between the sonography report and its opinion.
Its September 15 report said she was 25.4 weeks pregnant and reiterated the opinion.
But the woman’s advocate Aditi Saxena referred to an explanation to the section (of MTP Act) permitting termination where the pregnancy is due to failure of contraceptive device or method. She argued that the board was expected to opine only to the extent of anguish caused to the woman by such pregnancy and no more.
Justices Sanjay Gangapurwala and RM Laddha said they would certainly, without any hesitation, permit MTP as it is on account of failure of a contraceptive device and though the prayer is made by an unwed mother and is a result of consensual act. They added that they “are only concerned” with the board’s opinion that it would result in a pre-term viable baby.
“The baby born will have to be taken care of and it should not happen that the baby is born with some deformity due to premature termination of pregnancy,” they added.
The judges said if it is not a case where the baby is born alive, then there is no problem in allowing MTP. “We understand the trauma that the petitioner, an unwed mother, would undergo. At the same time, it cannot be lost sight of an alive baby being born and the consequences it would have on the baby if it is prematurely terminated,” they concluded, and passed the order.
34 weeks: Calcutta high court / 2022
February 18, 2022: The Times of India
Kolkata: The Calcutta high court allowed a 37-year-old woman to medically terminate her pregnancy at 34 weeks — the most delayed abortion in the country to receive legal sanction yet — on the grounds that the fetus has spina bifada, an incurable disorder. The woman from north Kolkata had filed a petition last week saying doctors at several private hospitals had ruled that the defect wouldn’t allow the baby’s spine and spinal cord to form properly, report Subrata Chattoraj & Prithvijit Mitra.
Most delayed abortion in India so far was at 33 weeks
A baby born with this condition cannot perform normal bodily functions and could die within weeks. The most delayed abortion in the country so far was at 33 weeks. It was sanctioned in August last by the Bombay high court, which allowed a 20-year-old woman to medically terminate her pregnancy because her fetus suffered from Arnold Chiari malformation II — a group of brain malformations that lead to serious spinal disorders — and bilateral clubfoot.
In the case of the Kolkata woman, Justice Rajasekhar Mantha asked her whether she was ready to take the risk of such a late abortion and allowed it after she replied in the affirmative. The court, however, made her and her husband sign an undertaking in the form of an affidavit saying they wouldn’t hold anyone responsible if anything goes wrong during the procedure. A medical board was formed at SSKM Hospital, which endorsed the termination appeal. This is the third case of medical termination of pregnancy (MTP) in Kolkata, allowed by the court since 2017. In the last case, in 2019, a woman 24 weeks pregnant was allowed to undergo an abortion on the ground that the unborn child had an incurable cerebral disorder.
The MTPAct, 1971 allows a woman to undergo abortion till 24 weeks of pregnancy.
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.
Decline in Mumbai, 2016-17
Abortions in Mumbai fall first time this decade, down 4%, May 16, 2017: The Times of India
HIGHLIGHTS
33,526 abortions were carried out at the city’s 550 registered centres in 2016-17—a 4% decline from 34,790 cases in 2015-16.
While total abortions declined by 3.6%, abortions among youths declined significantly by 52%.
MUMBAI: For the first time in this decade, the number of abortions has shown a decline in the city in 2016-17. Data collected by the civic body also shows a remarkable decrease in medical termination of pregnancies among teenagers.
The data, released in response to an RTI query, revealed that 33,526 abortions were carried out at the city's 550 registered centres in 2016-17—a 4% decline from 34,790 cases in 2015-16. In almost all previous years, MTPs have shown an upward trend, registering an average annual increase of 10-13%. The steepest decline in 2016-17 was in the below-15 age bracket, where only eight abortions were reported, compared to the average of 200 in previous years. Civic authorities are certain the trend is positive and only hints towards increased awareness and better reporting, although sceptical activists and doctors won't yet call it a "healthy sign". The data accessed by RTI activist Chetan Kothari showed a 34% decline in MTPs in the 15-19 age group. A senior gynaecologist from KEM Hospital said teenage pregnancies are a cause for worry worldwide. "To record such a decline without aggressive public health or social intervention seems a bit questionable," the doctor said.
A spokesperson of Ipas Development Foundation (IDF), which works towards safe abortions, expressed concern, saying a decline in abortion among youths requires further analysis, especially when the overall number of abortions has more or less remained the same. "While total abortions declined by 3.6%, abortions among youths declined significantly by 52%. This change within a year seems surprising," said the expert, adding that it requires research to understand why young women may not be seeking or getting abortion services at these facilities. "We also need to find out if young women are turning to informal providers for terminating pregnancy," the IDF expert added. BMC's executive health officer Dr Padmaja Keskar said the data was collected scientifically through a software introduced last year. "The manual system has been upgraded to minimize errors. There is a fall in teenage abortions as per the statistics," she said. Dr Keskar pointed out that the number of lives lost due to MTPs was 50% less than 2015-16, when eight women had died.
In an analysis of reasons why women needed MTPs, failure of contraceptive device topped the chart, with nearly 29,700 out of 33,526 citing it. The other reasons shown were physical and mental danger to mother's life or that the child may suffer from abnormalities. In 47 cases, rape was shown as the reason for pregnancy. The data also pointed towards a gradual decline in second trimester abortions. Professor of gynaecology at Sion Hospital Dr Arun Naik said abortions beyond 12 weeks pose additional danger to a woman and can give rise to complications. "Due to a tremendous increase in awareness, we see a very small fraction of second trimester abortions. Girls and women are prompt in seeking care," said the doctor. Out of the 33,526 abortions, only 1,375 were carried out in the second semester of 2016-17.
2015/ 1.56 crore abortions occurred
A total of 1.56 crore abortions took place across India in 2015, 22 times the 7 lakh figure that the government has been putting out every year for the last 15 years, according to a research paper published in The Lancet Global Health medical journal.
Not only do a lot more Indian women than previously thought undergo abortions every year, an overwhelming number — 81% — take medicines at home instead of going to hospitals, the study has said.
“The government figure talked of surgical abortions carried out in its own hospitals. The private sector was not counted, nor were medical abortions,” said the main author, Dr Chandra Shekhar of International Institute of Population Sciences in Mumbai.
Overall, 1.27 crore (81%) abortions were medication abortions, 22 lakh (14%) were surgical, and 8 lakh (5%) were through other methods, probably unsafe.
Medical abortions using mifepristone and mifepristone-misoprostol combipacks need a doctor’s prescription.
‘50% of pregnancies unintended’
Doctors whom TOI spoke to said the revised number of abortions caried out in India wasn’t asurprise. “Smaller studies done previously in Mumbai and Chennai indicated abortions were higher than thought,” said a doctor with a government hospital. “Sale of medicines for abortion also gave us an indication,” said gynecologist Dr Nozer Sheriar, who was a part of the study.
The new study also estimated that half of the total 48.1 million pregnancies in India in 2015 were unintended. “Abortions accounted for one-third of all pregnancies, and nearly half of pregnancies were unintended,” said the study, adding that India’s abortion rate is 47 per 1,000 women of reproductive age, which is similar to rates in Pakistan
(50), Nepal (42) and Bangladesh (39). Dr Shekhar said the unintended pregnancies pointed to the need for better contraception and family planning programmes.
Around 53% Indians use modern contraception, but the expert said studies have shown that half the couples surveyed didn’t know how to use the condom correctly. The study — conducted jointly by IIPS, the Delhi-based Population Council and the New York–based Guttmacher Institute — compiled national sales and distribution data of medical abortion pills and conducted surveys of various public and private health facilities in six Indian states.
It estimated that close to three in four abortions are achieved using drugs from chemists and informal vendors. WHO says abortion medicines are safe and effective when used correctly and within a nineweek gestational limit.
Unfortunately, only a quarter of the abortions occur in the public sector, which is the main source of healthcare for the poor. Dr Sheriar said abortions are the third leading cause for maternal mortality in India. “The use of medicines for abortions has brought down this number from 12% to 8% in recent years, but it is still huge,” he said, underlining the need to make access to abortion easier for women. The results show abortions don’t need to take place in hospitals, nor do they need highly trained doctors. The study proposed recommended permitting nurses, AYUSH doctors (practitioners of indigenous medicine) and auxiliary nurse midwives to provide abortion medicines. This would expand the number of providers—and facilities—qualified to offer safe abortion services.
Around 53% of Indians use modern contraception, but experts said studies have shown that half the couples surveyed didn’t know how to use condoms correctly. A study also found close to three in four abortions are achieved using drugs from chemists & vendors
Abortion, India and the world
The position in 2017
See graphic
SC OKs abortion of 26-week-old fetus
AmitAnand Choudhary|SC oks abortion of 26-week-old fetus|Jul 04 2017: The Times of India (Delhi) New Delhi Will `Mother, Child Otherwise Be In Danger' The Supreme Court on Monday came to the rescue of yet another pregnant woman, permitting her to abort 26-week fetus suffering from severe abnormalities. Holding that the right of a woman to have reproductive choice is an “insegregable“ part of her personal liberty guaranteed under the Constitution, a bench of Justices Dipak Misra and A M Khanwilkar allowed the abortion plea of the Kolkata-based 33year old woman on the basis of a medical report which said the child, even if born alive, might not survive for long as it would have to go through multiple surgeries due to congenital disorder. “She has a sacrosanct right to have her bodily integrity. The case at hand, as we find, unless the pregnancy is allowed to be terminated, the life of the mother as well as that of the baby to be born will be in great danger. Such a situation cannot be countenanced in court,“ the bench said.
The petitioner, Sarmishtha Chakraborty , approached the apex court seeking permission to abort as the fetus was suffering from complex congenital cyanotic heart disease. The court had on June 23 appointed a medical board of seven senior doctors of Institute of Post Graduate Medical Education & Research (SSKM Hospital) of Kolkata to examine her.
The board, after thoroughly examining her, gave its report favouring abortion. Accepting the report, the bench granted her permission to undergo abortion “forthwith“.“In the instant case, the report of the medical board clearly reveals that the mother shall suffer mental injury if the pregnancy is continued and there will be multiple problems if the child is born alive. That apart, the Medical Board has categorically arri ved at a conclusion that in a special case of this nature, the pregnancy should be allowed to be terminated after 20 weeks,“ the bench said.
The Medical Termination of Pregnancy Act, 1971, permits abortion till the fetus is 20 weeks' old. The proposed amendment to abortion law, though initiated in 2014, is yet to get the nod of Union cabinet. It intends to extend the permissible period for abortion from 20 weeks to 24 weeks if the healthcare provider believes the pregnancy involves a substantial risk to the mother or child. Many women discover serious problems with their pregnancy after crossing the legally permissible period of abortion and have been moving the SC seeking permission to end their pregnancies.The court has allowed abortion in almost a dozen such cases in the last one year.
The proposed amendment to the Act also allows to do away with the time limit for abortion in case substantial foetal abnormalities.“The provisions relate to the length of pregnancy shall not apply to the termination of a pregnancy by a registered health care provider where the termination of such pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities,“ the proposed bill says.
Delay in amending the Act to provide women a wider window to abort terminally ill fetuses is forcing many to move the apex court for permission to end their pregnancies that are beyond 20 weeks.
