Tuesday, April 16, 2024

Abortion Needs an Amendment

An apex court order allowing a rape victim to terminate her 24-week pregnancy brings into focus the need to change an outdated legislation which controls medical intervention. It is time our lawmakers wake up to scientific advances and to social realities

By Nayantara Roy  

On July 25 Ms X, a rape victim from a disadvantaged background, was permitted to terminate her 24-week-old pregnancy by a Supreme Court order after a team of doctors had examined her. The judgement by the apex court brought the focus on a recent spate of cases where courts have aided young rape survivors to overcome the limitations of legislation on medical termination of pregnancy.

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The Medical Termination of Pregnancy Act (MTP Act) which was enacted in 1971 was considered progressive then because it allowed for medical termination of pregnancy. Prior to 1971, abortion was an act punishable under the Indian Penal Code, a law that came into force under British rule in 1860! But according to rights lawyer Colin Gonsalves, who appeared for Ms X, the law remains frozen in the 1970s, both in terms of factoring in medical advances as well as in keeping up with social realities. The law needs to be amended.


In Ms X’s case the fetus showed terrible abnormalities when the mother was examined after 20 weeks—according to medical analysis it would not have survived the birth. A gynecologist who did not want to be identified, explained that the description given by the team of doctors who examined Ms X on the orders of the Supreme Court showed that not only were the organs of the fetus outside the body, but also that the vault of the skull was not formed, a condition called anencephaly wherein the frontal lobe is missing.

The gynecologist explained that this baby would not have survived birth in any case and labor would have been prolonged due to the missing frontal lobe of the brain which normally helps the fetus participate in the labor process. The shoulders would have got stuck and there was danger to the mother of obstructed labor with uterine rupture and post-partum hemorrhage. All fierce sounding medical terms which effectively mean that the mother would probably have died giving birth to a child who would not have survived anyway. Further, in Ms X’s case, the gynecologist explained that the trauma of carrying the baby to term would be ten-fold that of the trauma of terminating the pregnancy at the 24 week stage.


Section 3(2)(b) of the MTP Act of 1971 puts a ceiling on termination of pregnancy after 20 weeks. Section 5 sets out an exception to Section 3 in case the mother’s life is in danger. However, there is no provision if the mother’s life is not endangered but the fetus has abnormalities. The onus of caring for such a child including the possible medical expenditure on such a child would be on the pregnant woman, no matter her age, situation or ability to provide.

The explanations to Section 3 do take into account situations such as pregnancy caused by rape, the anguish of which could pose a grave risk to mental health. It allows for terminating a pregnancy arising out of failure of contraception but only applies it to a married couple. The woman’s “foreseeable environment” is also taken into account when considering grave risk to mental health. But all this is considered to be within the 20-week limit.

Cases pleading for termination of pregnancy being heard in court expose the limitations of the current legislation. Gonsalves’ client Ms X obtained relief from the Supreme Court which applied the exception set out in Section 5 to her case.  Even as her case was being heard a 15-year-old victim of rape sought the Delhi High Court’s intervention to enable her to abort a 24-week old fetus. The Court constituted a medical panel to determine the physical and mental condition of the 15-year-old to ascertain if the pregnancy could be terminated. Similarly, in January this year, the Madras High Court directed a medical board to determine whether the five month pregnancy of a 14 year old, rescued from the flesh trade, could be terminated.


American birth control activist and sex educator Margaret Sanger had famously said “no woman can call herself free who does not own and control her body”. The MTP Act, 1971 while introduced by the then health minister S Chandrasekhar as a step towards the emancipation of women does not give women the right to make this important decision regarding abortion but places the decision making in the hands of healthcare providers.

This is a view endorsed by Shweta Krishnan, research associate at IIT Madras, in her paper in the Indian Journal of Medical Ethics. She points out that the Medical Termination of Pregnancy (Amendment) Bill of 2014 intends to make much needed changes in the current Act. These will go a long way towards saving women from reaching out to what Gonsalves terms “the underground” in order to terminate pregnancies that the limitations of the current Act force many women to resort to.

Photo: UNI
Photo: UNI

Poverty and lack of access to information and knowledge of what to do is probably why so many cases seeking termination of pregnancy after the 20-week period have been allowed by various courts across the country. But among the poor who lack proper healthcare, there is the chance that a woman may not even realize that she is pregnant until the 20-week period lapses and fetal movement is first felt. Often rape victims who find themselves pregnant are too young to understand till it is too late. It is in this context that an amended law is important.


The MTP Amendment Bill, 2014, provides for termination of pregnancy up to 24 weeks. It will allow termination of pregnancy of up to 12 weeks on the decision of the woman herself. After 12 weeks and up to 24 weeks, the advice and opinion of only one medical practitioner will be needed making the process less bureaucratic and cumbersome.

This amendment takes into consideration that medicine has advanced since 1971 when D&Cs (dilation and curettage) were the only abortion methods available. At a later stage of pregnancy, this method could prove dangerous to the mother. The current practice is to induce mini labour by administering oxytocin and a cervical dilatory agent so that the fetus is delivered along with the placenta. Then, if required, some scraping might be done. Some doctors say that by this method the pregnancy can even be terminated in the eighth and ninth months.

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In Ms X’s case, the Attorney General argued that having a liberal process for medical termination of pregnancy would increase female feticide. But Gonsalves points out that feticide is a completely different issue. Krishnan in her paper says that the Pre-Conception and Pre-Diagnostic Techniques Act 1994 (PCPDT) is meant to tackle feticide.

It is true that trade in fetuses is a grisly crime that is supported by markets as varied as beauty and medical treatments and might be a fall out of a liberal MTP regime. Special laws are needed to tackle this horrific crime. But the answer cannot lie in forcing unwanted pregnancies on people who cannot support the progeny, especially in cases of severe abnormality of the fetus. The intent of the law should be to help victims expeditiously and not to burden them further.

According to Krishnan, the Abortion Assessment Project report says that 56 percent of the 6.4 million abortions performed annually in India are unsafe.  Ten to 13 percent of maternal deaths are due to unsafe abortions. Drafting good laws is all about factoring in possible fall outs, social evils and whatever else may impact on a law, not restricting the law so that it cannot fulfill its intent.

In another case represented by Gonsalves, the Bombay High Court had rejected the plea of a pregnant woman to terminate her more than 20 week pregnancy. She had only just found out that the fetus was abnormal. An appeal has been filed in the Supreme Court challenging the MTP Act. The rights lawyer is all for a progressive MTP (Amendment) Bill but is pessimistic about our lawmakers passing it.

Lead Illustration: Rajender Kumar



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