By Apoorva Mandhani
The Supreme Court’s recent denial of the abortion plea of a 32-weeks pregnant 10-year-old rape survivor was met with instant public outrage over the existing laws. The denial has, however, done more than just embolden voices on the need to revamp the existing abortion laws in the country. It has rekindled the debate on the inclusion of women’s right to determine their sexuality, fertility and reproduction, considerations which have seldom, if ever, been taken into account in the formation of policies related to abortion.
The current law
The Supreme Court’s decision was rendered in view of the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971, a law which was a giant leap to legalize abortion but has since remained stagnant. In its current form, the MTP Act permits an abortion within 12 weeks after consultation with one doctor. A woman seeking abortion between 12 to 20 weeks needs the medical opinion of at least two doctors. Further, an abortion is permitted only if continuing the pregnancy poses a “substantial risk” to the woman’s life or to her “physical or mental health”. Alternatively, an abortion may be allowed, if the unborn child faces similar substantial risk, that is, it would suffer from “physical or mental abnormalities” or may be “seriously handicapped”. In the case of pregnancies caused by rape, or a failure of birth control (for married women), the risk to their mental health is also taken into consideration.
Need to evolve and advance
While the prime objective of setting this ceiling was to prevent sex-selective abortion, this can no longer be the governing factor in formulating such a threshold. Medical advancements have now made it possible to determine the sex of the baby as early as 10 to 12 weeks through chorionic villus sampling (CVS), between 15 and 20 weeks through amniocentesis, and at 7 weeks, through a new blood test that has fast gained popularity among medical practitioners, since findings were published in 2011 in The Journal of the American Medical Association. Besides, the 20 weeks ceiling is not enough for detection of certain rare congenital diseases, potentially placing both, the mother and the child, at risk. It has, therefore, been opined, and rightly so, that the legislation has failed to keep up with scientific advances, and that it is in dire need of a revamp, in order to keep pace with the evolving jurisprudence.
Failed amendment attempts
The Supreme Court, in fact, has more than once voiced its opinion on making the law more meaningful and amending the MTP Act. The Ministry of Health and Family Welfare had proposed amendments to the Act after extensive consultations initiated way back in 2006, grounding it on the principles of women’s rights. The Bill sought to amend Section 3 of the Act, increasing the legal limit from 20 to 24 weeks, and allowing a woman to take an independent decision in consultation with a registered health-care provider. It also intended to expand the base of legal abortion providers – permitting Ayurveda, homoeopathy, Unani and Siddha doctors, nurses and auxiliary nurse midwives to be trained for the early termination of pregnancies. This was in line with WHO recommendations and international experience.
The amendments were, however, sent back to the Ministry for better implementation of the MTP and the Pre-Conception and Pre-Natal Diagnostic Techniques Acts. While it has been reported that this was to avoid illegal sex selection and abortion rackets, voices for introducing amendments have been louder than ever, in view of the rising instances of sexual crimes, and the urgent need for empowering women with sexual rights. In such a scenario, it is imperative that the need for carving out exceptions to the prescribed threshold is introduced, in order to adequately address these concerns.
Just the tip of the iceberg
Besides such significant oversights in the law, administrative lapses and delays in the judicial evaluation of the scenario have also, in the past, contributed to the woes of already ailing women. In January this year, a 35-year-old HIV+ woman from Bihar was allegedly left without options, after a government hospital was lax in responding to her plea within the statutory time limit. Even though she had applied for an abortion when she was 17 weeks pregnant, she had long crossed the threshold by the time her case could be considered by the Courts.
Moreover, there is evidence of women increasingly seeking abortion services from informal providers or chemists. The reasons for the same are plenty, ranging from the insufficient number of formal abortion providers to the lack of a provision to certify a wider range of facility providers. This can be done within the bounds of the current law as well, by the adoption of measures such as training doctors posted in rural facilities to offer medical abortion, and enabling community level, health-care workers and volunteers to guide women on such facilities. Hence, even though efforts to bring the law at par with the technological advances and the changing context of safe abortion continue, policy makers must also recognize that considerable leeway exists for increasing access within the current legal framework. It needs to be acknowledged that the law is currently riddled with outdated principles and restrictive jurisprudence, to make way for a battery of reforms.
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