Hyderabad: The Supreme Court judgement that refused a medical termination of pregnancy of a 10-year-old rape victim has rekindled the debate about the adequacy of the Medical Termination of Pregnancy (MTP) Act, 1971.
The SC refused abortion of a 28-week foetus on medical grounds that it would endanger the lives of both mother and child. The MTP Act legalises abortion only under 20 weeks, an exception being Section 5 of the Act, which allows abortion after 20 weeks in case it is “immediately necessary to save the life of the pregnant woman.”
An amended Bill of the 1971 law, which extends the bar from 20 to 24 weeks, has been in cold storage for the past three years. This draft Bill allows women whose pregnancies are within 24 weeks, reproductive rights in consultation with their medical practitioners.
The draft Bill also allows abortion beyond 24 weeks in case the foetus suffers from substantial abnormalities.
The demand for amending the MTP Act has been increasing from cross- section of people in view of the rising incidence of sex crimes and the urgent need to empower women with sexual rights and choices both for their own interest and for the sake of reducing fertility rate as a whole.
Rachna Waddepalli, an advocate in the Hyderabad High Court, said that in the case of the 10-year-old girl “the rights of an unborn child who cannot advocate for itself, versus the rights of its mother who is herself a child, one has to strike a balance. Right to “life” of the foetus should not include just a right to “birth,” but “life.”
The advocate opined that “in the present case, deciding on a late term abortion was not by choice. Medicine has advanced enough to let doctors help the little girl in good faith and take care of her health. And if it’s too risky, it’s a risk worth taking under the circumstances as decided by her parents for her.”
She pointed out, “When one can terminate a child at 20 weeks, which is viable in India, 24 weeks is the viability in the UK, would the courts also charge the killing of a pregnant woman with a double murder? Why would the value of the life of a foetus as a person be lessened then? Are the moot questions with no answers?”
She said that the Supreme Court denying permission to a 10-year-old rape victim to abort her 28 week pregnancy on medical grounds that it would endanger both their lives brought to the fore the debate of Law versus Morality.
The Supreme Court has held that “life” has to be meaningful, complete and worth living. Abortion is allowed in case it’s inevitably necessary to save the life of the pregnant woman.
She explained that the strict reading of the provision of the law and asking a woman to carry the baby to full term, deliver it and bring it up is going to put her through mental and physical agony.
Ms Wadepalli said, “The victim’s right to life guaranteed under Article 21 of the Constitution was already affected by the repeated rape by her uncle. The opportunity granted by law to develop in a healthy manner with educational facilities has been robbed; her personal dignity and intimate choice are put at risk. It’s not about women’s rights and their respective choices. It’s a child’s right to a pain-free life and about giving back her childhood.”
The grounds for allowing abortion in this case at an advanced stage of pregnancy, which is an exceptional circumstance, ought to have been that the petitioner is a young rape victim and an unwilling mother-to-be as there have been instances where the courts have allowed termination beyond 20 weeks, she added.
K Aruna, another advocate of the High Court, said that in several cases the Supreme Court has allowed an abortion beyond the permissible limit of 20 weeks pregnancy by treating it as a special case.
She said that in January this year the Supreme Court allowed a 22-year-old woman from Thane to undergo abortion in the 24th week of her pregnancy as the baby suffered from anencephaly, a life threatening condition.
She felt that the pendency of the amendment to the legislation has forcing women to bear unwanted babies.
- 2016 July: The SC allowed a woman to abort in her 24 week of pregnancy, granting her the benefit under Section 5 of the MTP Act, 1971, that allows abortion despite the 20-week ceiling.
- 2008: The Bombay High Court in the case of Haresh and Niketa Mehta observed that only the Legislature could address the demand for change in the legal limit, and that meant that India started the process of re-evaluating provisions of the Medical Termination of Pregnancy Act, 1971
- 2015: the SC permitted a 14-year-old rape victim from Gujarat to abort after 20 weeks by treating it as a “special case.”
Judgement delay costly for victims
Doctors claim that the stigma surrounding abortion in our country often leads to pregnant women resorting to quacks and home methods of abortion which is harmful to the mother's health.
Gynaecologist Dr Rooma Sinha says, “Often pregnant women are denied abortion due to religious customs that dictate against abortion. Abortion towards the last trimester is just like prolonged labour so it should be advised to have the procedure done as early as possible.” In cases of young mothers, an abortion harms their health.
Dr Sasikala Kola says that information such as whether the mother is anaemic, underweight, and her age, should be taken into consideration when taking a call on abortion.
“Many families are afraid of the backlash, and in the case of rape victims, they don’t speak out for fear of threats from the perpetrators. This leads to the delay in getting an abortion and our law does not then allow it.”
She says families should be aware of their girl children and keep a watch on them. Letting a pregnancy go beyond the stipulated ‘safe period’ could lead to complications if the abortion is not performed by recognised doctors.
Dr Vimee Bhindra says going to court cost the rape victim four weeks, which is huge in terms of pregnancy. The judgement process in such cases should be faster, say, three to four days. Gynaecologists see septic abortions and non- institutional deliveries on a daily basis.
“We see a lot of cases where the family tries to hush up an unwanted pregnancy by going to quacks. Some use washing sticks to clear their uterus, leading to bowel perpetuation. There is no regulatory body to keep a check on who is performing abortions,” says Dr Sasikala.
