India moves to liberalisation of abortion rules

Dr Nikhil Datar | Updated on March 28, 2020 Published on March 28, 2020

There is an urgent need to understand that abortion is not a “crime” nor “killing” but an issue of personal liberty and privacy

On January 29, 2020, India witnessed changes to the abortion law. The Union Cabinet, chaired by Prime Minister Narendra Modi, approved the Medical Termination of Pregnancy (Amendment) Bill, 2020, amending the existing MTP Act, 1971. This is a progressive move offering greater recognition of and autonomy for women’s reproductive rights. Abortion is considered an important aspect of the reproductive health of women.

It was back in 2008 that 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 upwardly in the interest of women in this country.

The trigger for this was a writ petition I had to file along with my patient, Niketa Mehta, in the Bombay High Court. Niketa, in her 24th week of pregnancy, came to know that the foetus in her womb had multiple heart defects and that the child, if born, would suffer with serious abnormalities 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. Hence, I moved the HC for legal permission. The Court denied the permission. This was the first trigger point in the MTP Act that made me approach the Supreme Court.

The first victory

According to the Indian Penal Code of the 19th century, which is still in force, abortion is a crime. 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. The MTP Act carved out an exception to the provisions of the penal code, thus legalising abortions till 20 weeks. This is how the battle began in 2008.

Our first victory came in 2016 in the case of Ms X and Dr Nikhil Datar Vs Union of India. This woman was a rape victim and was 24 weeks pregnant. Her foetus suffered from anencephaly, which means that the brain is almost not formed. Such children are vegetative from birth and survive for a few hours or days at best. The Apex Court was convinced with our arguments and allowed the first-ever legal termination beyond 20 weeks.

There is an urgent need to understand that abortion is not a “crime” nor “killing” but it is an issue of personal liberty and privacy. Each one in this country has a choice. Those women who believe that termination of pregnancy is in their best interest in a given situation must be respected. Those who do not believe in it may restrict their belief within personal realms 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 also not true. It is well-proven in medical literature that as the pregnancy is more advanced and prolonged, it becomes complex. If the termination is not done, it will become more risky than delivery.

Those who have a doubt on the misuse of the amendment, it is important for them to know that provision of extension of time limit is applicable only for two situations; one for marginalised women such as rape survivors and the second for severely abnormal foetuses. Is it not illogical to think that a woman would continue pregnancy beyond twenty weeks then fake rape, make a police complaint and then seek termination when she could have done so much earlier than 20 weeks?

The judiciary will play a key role in monitoring the implementation of existing decisions and ensuring that the law is women-centric, respecting their privacy and bodily integrity. Till then the fight shall continue.

The writer is Senior Gynaecologist and Medical Director, Cloudnine Group of Hospitals, Mumbai. Views are personal

Published on March 28, 2020

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