Mrs. X wanted to terminate her pregnancy in the 26th week because the unborn child was detected with a severe brain deformity called anencephaly. Since abortion after 20 weeks of pregnancy is illegal in India, she decided not to go through the difficult process of moving the courts and getting legal exemption. She carried the baby full-term and after a lengthy, stressful labour gave birth to a child that died a few minutes after birth.
Mrs. Y was told by her doctor that there were chances her child had a serious brain anomaly in the 18th week of her pregnancy. Amniotic Fluid Test was recommended but it would have taken three weeks for her to get the results. As she would cross the twentieth week of her pregnancy by then, she chose to go in for an abortion but when she got the reports, there was no severe brain anomaly and she had to deal with the shocking information that she had aborted a healthy foetus.
These are not hypothetical situations but real women who went through these very painful experiences, which led them to file cases in the Supreme Court demanding changing the Medical Termination of Pregnancy (MTP) Act 1971.
Abortion is a topic that is often painted in complete black and white. All over the world, there are the pro-life (anti-abortion) and pro-choice (abortion rights) camps and never do the twain meet. People who strongly identify with the philosophy of either of these groups fail to understand the intricacies in this quagmire of an issue.
In a perfect world, everybody is educated about safe sex and has access to contraception, and there are no unwanted pregnancies but of course, we do not live in a perfect world. The terms ‘pro-life’ and ‘pro-choice’ are themselves very misleading. Anti-abortion activists call themselves ‘pro-life’ because they are talking about the life of the foetus, but what about the life of the woman who is forced into an at-risk pregnancy or illegal abortion due to inaccessibility to a legal termination of the pregnancy? The pro-choice terminology is also quite misleading since most women who opt for an abortion do not do so out of choice but due to various socio-cultural or medical factors.
The recent landmark judgement by the Supreme Court
Two days ago, the Supreme Court passed a landmark judgement allowing a 26-year-old rape survivor to terminate her 24-week pregnancy since tests confirmed that the foetus had genetic deformities only after the legally permissible 20-week time period. Mentally too she was deemed too traumatised to go through the pregnancy.
The decision was taken by a Bench of Justices J.S. Khehar and Arun Mishra on the basis of a confidential medical report on her health filed by a team of doctors from Mumbai’s King Edward Memorial Hospital.
Exemptions and complicated legal routes
When the MTP Act came into being in 1971, there were no ultrasounds or foetal monitors to carefully screen the baby’s physical development. The Amendment to the Medical Termination Pregnancy Act Bill, which was proposed in 2014, is yet to be passed by the Parliament. This amendment will extend the time-frame for termination of pregnancy to 24 weeks, while having no time limit to terminate a foetus with serious genetic defects. These changes will bring the law more in tune with international laws and makes sense with recent progress in the field of gynaecology and obstetrics. The delay in its approval is forcing women to take the legal route in a situation that is very delicate and time-bound.
It was in 2008 that a high-profile case catapulted the issue of abortion into the national spotlight. Nikhil Datar, who is a Director with Cloud Nine hospital, had encouraged his patient Niketa Mehta and her husband Haresh to seek legal help. The couple had petitioned Bombay High Court to allow them to abort her 26-week-old foetus that had been diagnosed with a congenital heart defect. At that time, the Bombay High Court did not allow the parents to terminate the pregnancy, but Niketa suffered a miscarriage a few days later.
Dr Datar has stated that he had a patient in 2005 who was forced to give birth to a severely disabled child since the deformity was detected after the legal threshold and his patient’s life was effectively destroyed. This led him to encourage Niketa to seek legal help.
The cases filed by Mrs. X and Mrs. Y are still languishing in courtrooms.
Internationally, most western countries have abortion laws that are deemed supportive of women. There are exceptions though, like Ireland, which is a Catholic country. Savita Halappanavar, a young Indian woman who was living in Ireland, died in 2012, due to complications of a septic miscarriage at 17 weeks’ gestation. She had been denied abortion despite of her deteriorating health. Her death led to widespread protests and debates on abortion laws in Ireland.
Many medical personnel and pro-abortion activists are of the opinion that the 20-week period is too short for all genetic abnormalities to manifest. But that is just one side of the coin. What also needs to be discussed neutrally is a woman’s empowerment and her rights to take decisions pertaining to her body.
The issues specific to India
The decision makers – A lightly mentioned phrase from a television sitcom – “no uterus, no opinion” does make a lot of sense. Why are men still the decision-makers when it comes to laws and policies on women’s issues?
Disallowing abortion does not mean no abortion – Those who are not allowed a legal abortion mostly do not carry the child to full term, and instead rely on illegal and unsafe abortions, often in unhygienic conditions.
Female foeticide – In India, because of the preference for the male child, female foeticide continues to be a huge risk when it comes to extending the time frame for legal abortions.
Fast-track the law – The MTP Act needs to be amended immediately and the various issues related to women’s reproductive rights and health need to be considered while framing the same.
Education – Education is the ultimate solution; not just academic education per se, but spreading of awareness among all adolescent girls and young women (and young men too) across the country about contraception, safe sex, pregnancy, reproductive health and legal rights of women.
Tackling ignorance and encouraging healthy debates on such key issues is the need of the hour. What is even more important is that all the stakeholders need to listen without being judgmental and ensure one’s prejudices do not result in somebody else’s distress.