Claiming right to abortion and a life of dignity; towards a women friendly abortion law

Post Date: Tuesday, August 9, 2016

Claiming right to abortion and a life of dignity; towards a women friendly abortion law

Ms. X vs. Union of India; Supreme Court of India {Writ Petition (Civil) 593 of 2016}

In the 22^nd week of her pregnancy, Ms. X’s foetus was diagnosed with Anencephaly (absence of a major portion of the brain, skull, and scalp). Albeit the abnormalities in the foetus and the resultant risk to her mental and physical health; she was denied an abortion as the pregnancy has crossed the 20^th week period. Abortions in India are regulated under the Medical Termination of Pregnancy (MTP) Act of 1971, which does not allow an abortion after the 20 week period of pregnancy. The 23-year old woman suffered immense mental and physical anguish on account of carrying a foetus that will not survive.  To protect her right to life and health, she had to knock the doors of the court. Her case was fought by the counsels from Human Rights Law Network, and the Hon’ble Supreme Court of India allowed her to medically terminate the pregnancy.  

After an initial hearing the court ordered the State of Maharashtra (Respondent) to set up a medical board at the KEM Hospital for medical examination of the petitioner. After the medical board’s examination on 23^rd July’2016, following observations were made:

• Foetus not fit for extra uterine life,
• Risk to Ms. X’s life of continuation of pregnancy can gravely endanger her physical and mental health,
• Risk of termination of pregnancy is within acceptable limits and
• Ms. X has no active medical complaints

Following the medical report, the court granted her permission for abortion on the 25th of July’2016.

Abortion services are enablers for women to exercise their choice and have a life of dignity. In absence of pro women abortion laws; accessing the same services becomes an uphill task and leaves the woman suffering with physical and emotional trauma. The Medical Termination of Pregnancy (MTP) Act of 1971 is waiting its’ much needed amendments; which will enable a woman to abort the foetus after the legal limit of 24 weeks. While Ms. X could avail an abortion, after a legal intervention, many women in India are left wanting one as a result of the unreasonable 20 week restriction. The MTP Act dates to 1971 and the 20-week ceiling it mandates, needs reconsideration.

Due to advancement in technology it is perfectly safe for a woman to undergo abortion up to 26 weeks of pregnancy. Even the Federation of Obstetric and the Gynaecological Societies of India (FOGSI), confirms: “the risk to the mother in case of termination of pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks.” FOGSI further advises that “in case of foetal abnormality which has been detected late and which leads to an extremely serious handicap at birth, such foetus should be allowed to be terminated, even after 20 weeks.

The current MTP Act does not take into account the cases where foetal abnormalities are only detected after 20 weeks. Out of the 26 million births that occur in India every year, approximately 2-3% of the foetuses have severe congenital or chromosomal abnormality. These defects cause risk to women during the pregnancy and delivery. In India where women do not have access to adequate ante natal care, foetal abnormalities may be detected much later in pregnancy.

In the past in a case before the Supreme Court, the court had denied abortion to a woman whose foetus was detected with foetal abnormalities only by the 22^nd week of pregnancy. She ultimately miscarried after months of grief and torment and at risk to her own personal health and safety.

Illegal abortions are the third leading cause of maternal death in India and account for 13% of maternal deaths worldwide. The MTP Act encourages desperate women who learn about a foetal abnormality after the 20^th week to seek out unsafe abortions from untrained medical personnel.

The ceiling of 20 weeks is therefore arbitrary, harsh and discriminatory and violates Articles 14 and 21 of the Constitution of India. The denial of medical termination of pregnancy has been identified as a violation of the right to be free from torture and other cruel, inhuman or degrading treatment.

You can read the order in the case of Ms. X vs Union of India here