The recent Supreme Court decision which denied abortion to a 10-year-old rape victim after a medical panel found that the procedure would endanger both the girl and the 32-week foetus, has put the spotlight on the country’s abortion laws.
The Medical Termination of Pregnancy (MTP) Act enacted in 1971 requires a woman who is 12-weeks pregnant to consult a doctor before undergoing an abortion. In case of a 12-to 10-weeks pregnancy, the woman will need to procure assent from two registered medical practitioners before the procedure.
Beyond 20 weeks, a woman is allowed abortion only if the pregnancy is a serious threat to her life, which is determined currently by a court appointed medical panel.
India’s Abortion Laws Now Outdated
At the time of its enactment, the 1971 MTP Act was considered progressive given that earlier provisions held abortion to be illegal with any medical practitioner performing them liable for jail time.
The Act takes into account only medical opinions ignoring religious or social directives for decisions regarding a termination in addition to a woman’s consent provided she was an adult.
Medical Tests Today Need Few More Weeks
Medical expert argue that the 20-week rule is outdated today.
According to Dr Firuza Parekh, Director Genetics at Jaslok Hospital, the 20-22 week law is no longer valid since today a few more weeks is needed to decide in case of genetic defects in the baby.
With lack of clear legal guidelines , a bunch of cases have landed before courts for medical termination after 20 weeks. A significant portion of these are rape victims and couples with foetus with risk of severe birth handicaps.
Conflicting Laws And Court Orders
Courts have also made matters difficult with the Supreme Court and other High Courts passing conflicting decisions regarding MTPs post 20-weeks in the past few years .
Dr Jaydeep Tank, a Mumbai-based gynaecologist and obstetrician and also Deputy Secretary General of FOGSI noted that in many of the cases physicians are confused as to treating the cases as “ MTPs or obstetric decisions.
However, the confusion has resulted in the continuation of illegal and dangerous operations. According to latest data, 10 women die in India every day due to continued practice of unsafe abortions.
- In case of minors, abortion is granted only with consent of a legal guardian as per provisions of the Protection of Children from Sexual Offences (POSCO) Act . Medical practitioners are required to report if a minor approaches a doctor without a legal guardian for an abortion.
This is at cross-purposes with MTP rules which require physicians to protect the identity of the patients. With nearly half of the women in India marrying below the age of 18, such confusing laws often result in the women seeking unsafe abortions.
- Yet another law that complicates the issue is the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 (PC-PNDT).
The law which was enacted to address female foeticide makes sex determination of the foetus during pregnancy a crime. However if a female foetus is required to be aborted for any other reason, the application of the laws can get confusing.
- Another major issue of access to trained medical practitioners for safe abortions, which at times results in women using quacks.
MTP Act Amendment Tabled But No Progress So Far
A new bill Medical Termination of Pregnancy (Amendment) Bill was tabled in the Parliament in 2014 and it includes provisions by which doctors can go ahead in good faith with an MTP even in the 20 to 24th week window under conditions such as pregnancy arising out of a rape or presence of risk to the mother’s health from the pregnancy.
The bill also includes provisions that allow trained nurses, AYUSH doctors, and auxiliary nurse-midwives to carry out termination procedures which might help ease the problem of poor access.
However there has been no progress in regards to the bill so far.