On 29 January 2020, India witnessed changes to India’s archaic abortion law. The Union Cabinet, chaired by the Prime Minister, approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 to amend the Medical Termination of Pregnancy Act, 1971. While the bill is yet to be introduced in the ensuing session of the Parliament, it is a welcome move in the interest of women’s rights as it will help in expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds.
Back in 2008, I filed my case Dr Nikhil Datar Versus Union of India to amend the MTP Act and to revise the legal limit for termination of pregnancy. Earlier I along with my patient Niketa Mehta had filed a writ petition in the Bombay high court. Niketa, in her 24th week of pregnancy, learnt that the fetus in her womb had multiple heart defects and that the child, if born, will suffer serious abnormities and may have to undergo multiple cardiac surgeries and long term treatment. She approached me for termination of pregnancy. I was convinced that her demand was fair but the MTP Act does not allow for such termination. This was the first trigger point in the MTP act which made me file the case in the Supreme Court.
The Indian Penal code, drafted in the 19th century, which is still in force, considers abortion a crime. This law states that the woman and the person helping, can be imprisoned up to seven years. The MTP Act carved out an exception to the provisions of the penal code thus legalizing abortions till 20 weeks. In those days healthcare, medicines and diagnostics were primitive. Sonography was not used in medical practice, the law has not kept pace with medical advances. This is how the battle began in 2008. Our first victory came in 2016 in Ms X and Dr Nikhil Datar Vs Union of India. This woman was a rape victim and was 24 weeks pregnant.
Her fetus suffered from anencephaly which means that the brain remained unformed. Such children are vegetative from birth and survive a few hours at best. The apex court was convinced with our arguments and allowed the first-ever legal termination after 20 weeks.
Many had reservations and doubts. Some were against the concept of abortion altogether. Abortion is an issue of personal liberty and privacy. Those women who believe that termination of pregnancy is in their best interest must be respected. Those who do not believe in it may restrict their belief to the personal realm and not impose it on others.
Many people think that termination of pregnancy beyond 20 weeks may be unsafe or risky to the woman herself. This is not true. It is obvious that a woman progresses in her pregnancy the more complex the procedure becomes. At no point of time, termination of pregnancy becomes more risky than delivery. This is well proven in the world’s medical literature.
Many also have a doubt about the misuse of the amendment. In the country where female feticide is rampant, will this be misused? Is this a justified question? Sex determination can be done as early as 12 weeks. The provision of extension of the time limit is applicable only for two situations— one for victims of sexual abuse and in the case of severe abnormalities in the foetus.
The amendment should be quickly tabled in the Parliament and should be brought in force immediately, in the interest of women and their right to safe abortion. Indeed it’s a great recognition of women’s reproductive rights as these are essential for women’s equality as they ensure women’s rights of bodily autonomy. The judiciary will play a key role in monitoring the implementation of existing decisions. Till such measures are taken, and put into practice we need an ordinance that can be brought in to provide immediate relief. I hope that the new law will usher us into an era that is woman-centric, one that respects the privacy and bodily integrity of women. Till then the fight shall continue.
(The writer is a Mumbai based gynaecologist and health activist who has helped nearly 100 women seeking late abortions)