Safe abortion: every woman’s right and her decision aloneUpdated: Sep 28, 2019, 21:04 IST
There’s been a spurt in women approaching the Supreme and High Courts seeking permission to end their pregnancies, but the judgments have been conflicting, according to a new analysis of court judgments by the not-for-profit Pratigya Campaign for Gender Equality and Safe Abortion.
Over the last three years, 194 women have gone to courts seeking abortions in traumatic circumstances including rape, risk to life and mental health, or foetal abnormalities, but the judgments have been unpredictable, found the report, released on Saturday.
Adjudication has been done on a case-by-case basis, with the women’s choice and rights over their bodies not getting prioritised. There has been no consistent jurisprudence for cases involving sexual assault, foetuses with abnormalities, compensation for systemic delays and the trauma caused, or understanding of the implications of the pregnancy on mental health, the woman’s financial capacity to raise children, among others.
Under the Medical Termination of Pregnancy (MTP) Act 1971, which replaced the colonial Indian Penal Code 1860 that prosecuted women for “causing miscarriage”, trained doctors in registered hospitals can provide surgical abortions up to 20 weeks, while abortion pills can be prescribed to end pregnancies up to seven weeks outside registered hospitals. The Act also allows termination of pregnancy after 20 weeks to save the life of the pregnant woman.
The MTP Act recognises an unwanted pregnancy could damage the health, including causing “grave injury” to the mental health, it leaves the decision-making to doctors and not women. Advancements in medical technology have also outdated the law that was made close to five decades ago, when the only abortion method was Dilatation and Curettage, which required a higher skills and medical infrastructure. Medical-abortion drugs and vacuum aspiration (manual and electric) available today make MTPs safe at any time during the pregnancy.
Between June 1, 2016, and April 30, 2019, the Supreme Court heard 21 cases, and the High Courts 173, found the report called ‘Assessing the Judiciary’s Role in Access to Safe Abortion’. Verdicts are rarely based solely on women’s choice or whether there was a threat to the life or mental health of the woman.
The Supreme Court granted abortion in 15 of 20 cases, as one case involved a petition to set up committees to draft amendments to the MTP Act. In the rape cases where abortion was allowed, the Supreme Court based its decision on the medical board’s opinion regarding the feasibility of the MTP.
Of the 173 cases in all High Courts, the Bombay High Court has heard 88 cases, followed by 22 in Madhya Pradesh. MTPs were permitted in 139 cases and denied in 29 cases, with three petitions being withdrawn by the petitioners, one case being dismissed on account of petitioner not appearing before the medical board, and the last was disposed because the woman had a miscarriage.
Surprisingly, in 40 cases before High Courts, the gestation period was less than 20 weeks, for which court permission is not needed. All 30 cases involving rape of minor girls were granted permission to end their pregnancies. Among the 92 rape cases, 75 permissions were allowed and 17 were rejected for varying reasons, with the court relying primarily on the opinion of the medical board.
On average, it took 12 days for the Supreme Court to decide MTP cases, with high courts taking longer -- Madras High Court an average of 23 days, and the Punjab and Haryana High Court an average 17 days. The speediest resolution of such cases took place in the Karnataka High Court and Gujarat High Court, which decided matters in seven days week of the filing of the petition.
India’s Medical Termination of Pregnancy Bill 2017 proposes to raise the upper limit of legal abortions from 20 weeks to 24 weeks, and in the cases of substantial foetal abnormalities, fix no upper gestation limit for termination, and train non-doctors to perform medical abortions to increase provider base in the first trimester, and extend the condition of “failure of contraception” as an indication for abortion for all women and not just married women.
It’s also essential to allow termination of pregnancies arising out of rape at any stage because of the serious injury to mental health and harmonising MTP with Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, the Protection of Children from Sexual Offences Act, 2012, the Drugs and Cosmetics Act, 1940.
One in three of 48.1 million pregnancies in India end in an abortion, with 15.6 million abortions taking place in 2015. Unsafe abortion is the third biggest cause of maternal deaths. Any delay in the prevention of these avoidable deaths is a travesty of human rights.