Defend the woman’s autonomy, right to choose
In theory, India’s position on abortion is progressive. In practice, the law is flawed and punishes women
India’s progressive stance on abortion is not practical as it doesn’t allow women the autonomy to decide. The subjectivity of the Medical Termination of Pregnancy (MTP) Act, inconsistent enforcement, and a tendency for enforcers to absolve themselves of responsibility have resulted in a redundant system. The legal system has failed to address what is a matter of human rights. Our analysis of 194 writ petitions heard by the Supreme Court (SC) and the high courts between June 2016 and April 2019, filed by women seeking medical termination of their pregnancy, identified several systemic issues that lead to unpredictable and inconsistent outcomes. The length of the gestation period and the opinion of the medical boards were common themes in cases of rejection. Neither factor considers the petitioner’s medical report or the rejection’s impact on the woman beyond the subjective interpretation of the Act.
In the 20 cases overseen by the SC, MTP was permitted in 15 instances and rejected in five. All these cases involved pregnancies that had crossed 20 weeks. Of the five cases rejected, two pregnancies were due to rape, one of whom was a minor. In the case of the minor, the SC relied on the opinion of the medical board that a continued pregnancy was safer than termination. In the second case of rape, where the gestation period exceeded 36 weeks, the court denied the MTP request. It’s important to note here that the doctor had earlier denied the woman MTP on account of her being HIV positive, despite the fact that she was only 17 weeks into the pregnancy — which is well before the 20-week limit set by the court. It forced her to go to the high court — which again rejected the plea — and then to the SC, by which time, the gestation period had reached 36 weeks. The three other rejections were cases of foetal abnormalities, in which the court’s decision, again, was driven by the opinion of the medical board.
The Act treats MTP as a public health issue, focusing more on its impact on family planning and potential criminal proceedings against medical professionals, while ignoring women and their right to choose. By giving medical professionals the space to be discretionary, the law often allows doctors to deny requests even before the permissible 20 weeks if the request is not accompanied by a court order. An inefficient process easily takes these cases past the prescribed gestation period, causing distress. The reliance on medical boards is another sticking point. Women who approach the court tend to do so armed with a medical opinion, and since the concept of the medical board was never part of the Act, their influence on the decision-making process makes things complicated.
The problem with the Act is one of both legality and legitimacy. There have been multiple instances of attributing personhood to the foetus, as evidenced by the use of phrases like “life of the foetus”, opening up the implementation to moral subjectivity. The guidelines to implement the law must be more explicit and consistent across states, minimising the scope for discrimination masquerading as discretion. Furthermore, there is a clear need for the Act to keep pace with the times, an attribute it lacks on many counts. It cannot continue to prioritise the decision of the registered medical practitioner (RMP) based on outdated standards of medical risk that override every technological advancement that has reduced the risk associated with MTP. By adopting a narrow definition of physical health, the Act, in some instances, also ignores the socioeconomic implications of childbirth, placing women under intense physical, mental, and social duress. The Act also contradicts the SC’s recognition of a woman’s autonomy regarding her body, privacy, and live-in relationships.
Given the advancements in technology, the restrictions on the term should be increased to 24-26 weeks. More importantly, cases under 20 weeks should be inadmissible in court and directed to registered medical professionals, with provisions for legal action in the event of refusal. Noting the trauma associated with assault, MTP must be available to all pregnancies in these circumstances, irrespective of the constraints in the Act. A discussion about women empowerment should be accompanied by a thorough assessment of the subjects’ rights. By taking a medical stance at the cost of a legal perspective, the courts are denying women a facility that should be easy to access and easier to implement.
Anubha Rastogi is a lawyer and member of Pratigya Campaign Advisory Group. Raunaq Chandrashekar is a public policy consultant
The views expressed are personal