Nikhil Datar vs. Union of India: A long drawn struggle

Post Date: Wednesday, February 5, 2020

Amendment of (MTP) Act 71 is on its way: The Union Cabinet on 29.01.2020 approved extending the upper limit for permitting abortions from the present 20 weeks to 24 weeks. The Cabinet permitted the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971. While addressing the media after the Cabinet meeting, Union Minister Prakash Javadekar said “In a progressive reform and giving reproductive rights to women the limit of 20 weeks of medical termination of pregnancy has been increased to 24 weeks. This is important because in first 5 months there are cases where the girl concerned doesn’t realize and has to go to court. This was discussed with various stakeholders. This will reduce maternal mortality,” he said. 

The landmark judgment is the first step towards victory for HRLN lawyers and activists. The battle began in 2008 when Dr. Nikhil Datar who along with his patient filed a case in the Bombay High Court seeking permission for medical termination of pregnancy at 24 weeks gestation. The woman carried a fetus which had multiple cardiac defects. These abnormalities were diagnosed in 24 th week of pregnancy. Doctors predicted that even if a child were born from the pregnancy, the child would require a lifetime of surgeries and could possibly suffer sudden death. The diagnosis was devastating for the woman and her husband as this was a wanted pregnancy. The woman requested for termination of pregnancy and was referred to an obstetrician, Dr. Nikhil Datar. Dr. Datar sought judicial authorization from the High Court of Mumbai for the termination. The High Court however, denied their request, failing to recognize the severe mental anguish suffered by women.

Having faced similar cases prior to – and since –the first case, Dr. Datar with support from the legal team of HRLN filed a special leave petition Nikhil Datar vs. Union of India (SLP Civil – 5334/2009) before the Supreme Court of India to appeal the decision.  In 2016, one Miss X, approached HRLN with similar request. She was a rape survivor with 24 weeks pregnancy. The fetus was very severely malformed. HRLN along with Miss X approached the Supreme Court for seeking permission for termination of pregnancy. HRLN represented both the parties successfully. HRLN with medical guidance from Dr Datar represented a number of women in the court of law and the court was forced to permit medical termination of pregnancy. A series of cases namely Amita Kujur vs. State of Chhattisgarh & Ors. Writ Petition (Civil) No. 976/ 2016, Mrs. X & Ors v Union of India & Ors Writ Petition (Civil) No. 81 of 2017, Sarmishtha Chakraborty & Anr. Vs Union of India Secretary & Ors. Writ Petition (Civil) No. 431 of 2017 and several others were taken up in the Supreme Court, Delhi High Court, Chhattisgarh High Court and the Bombay High Court. These cases pushed the government to take notice of the elephant in the room and finally in 2020, the MTP Amendment Bill was passed. The Bill will be introduced in the ensuing session of the Parliament. This is a very significant step towards ensuring dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy. Replacing the archaic law of 1971 to keep up with medical advancements is a great step forward to ensure that women across India, legally and rightfully get access to safe abortions and this has been hailed by all and will help to strengthen women’s reproductive rights and prevent unsafe abortions.