Thursday, February 29, 2024

Objections continue unabated on abortion laws

Recently in a plea before the Supreme Court a pregnant woman sought permission to abort her 24-week-old fetus. She had allegedly been raped by her ex-fiancee on the pretext of marriage and her petition stated that the fetus had severe abnormalities and must be aborted as soon as possible. She informed the court that no hospital aborted her fetus on the ground that it violated Section 3 (2) (b) of the Medical Termination of Pregnancy Act (MTP) , 1971 that prohibited abortion if the fetus was more than 20 weeks old. As a result, she was facing severe mental and physical trauma, the petition contended. 

The apex court had on Thursday asked the centre and the Maharashtra government to quickly respond to her plea and fixed the hearing for Friday. On that day, according to India Legal sources, it determined that a medical board set up within 24 hours  by KEM hospital, Mumbai, would examine her on Saturday at 10 am and decide whether the fetus could be aborted. The report will be presented before the court on Monday. Only then the apex court will arrive at a decision on her plea. It also agreed to examine whether Section 3 (2) (b) needed to be abolished. 

MTP 1971 allows termination of pregnancy exceeding 12 weeks but less than 20 weeks if two registered medical practitioners agree that “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped”.

The petitioner challenged the cap of 20 weeks mandated by the Section 3 (2)(b) of the Act and termed it ultra vires of the constitution. While arguing that the limit of 20 weeks must be breached in case of exceptional medical complications faced by a woman and her fetus, she alleged that the rule was arbitrary, unreasonable and infringed upon her fundamental rights. It must be scrapped she contended.

The Supreme Court in another recent case had allowed abortion after 20 weeks on the basis of a medical examination. The case involved a raped minor. The issue was whether the fetus posed a threat to her health and whether she was psychologically ready to be a mother.

The Union health ministry has already agreed that abortion laws in India need to be changed and the matter is pending approval from the cabinet. Some of the changes suggested include extending abortion from the present 20-week fetus to 24-week fetus in “special cases” and restricting the involvement of doctors from two to one in case of abortions done between 12 and 20 weeks. Even the law ministry has sanctioned the changes.

Abortion has been a raging issue in other countries as well. The US Supreme Court recently gave a ruling against a Texas law that had made access to termination of pregnancy very difficult for women. In USA, the discourse has been linked to the viability of the foetus outside the womb. As medical improvements make it possible for the foetus to stay alive outside the womb at an earlier age the time period for termination of pregnancy in various state legislations has decreased. Earlier this year the US Supreme Court had struck down a proposed Arkansas law that was going to ban abortion after only 12 weeks of pregnancy. 


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