Abortion laws in India are archaic and need to change. The arguments for this have been made and accepted by several doctors, lawyers and activists for long now. This case of a pregnant woman wanting abortion shows exactly why.
A plea was moved in the Delhi High Court on Tuesday challenging the law that prevents abortion of foetus that is more than 20 weeks old, except where the mother's life is at risk.
The petition was moved by a 22-year-old woman who has sought termination of her over 22-week pregnancy, reports PTI. There are complications in the pregnancy and she argues that the foetus is not viable as it has severe deformities and carrying it would also affect her physical as well as mental health.
The Problem With Current Procedure
While the Medical Termination of Pregnancy (MTP) Act hasn’t changed, the courts in the past have made exceptions for a select few cases like these till as long as 24 weeks of a pregnancy. The procedure for this is that a medical board is set up by the court’s order, which decides whether the abortion is necessary.
Similarly, for this case, the court has set up a medical board of doctors, that includes a psychiatrist from AIIMS, to assess the viability and condition of the foetus and also the woman's mental health in view of the complication in her pregnancy.
Now, here’s the catch. The board has been asked to submit its report by 17 December, the next date of hearing, according to PTI. That is two weeks away. The progress of the pregnancy is not going to wait for the board or the court to come to a decision. And as has happened in the past, this delay because of such a procedure will mean that the final decision may come when the woman is 25-26 weeks pregnant. It has also happened in the past, that because of this delay, the court ends up saying that now “it’s too late to abort safely.”
So, in this age of technical advancement which allows for abortions to be carried out safely even at a later stage in the pregnancy, why are we sticking to such a cumbersome process and not changing the law?
How the Law Needs Tweaking
The woman has challenged the restriction on abortion in the MTP Act, contending that it does not provide for severe fetal abnormalities discovered late in pregnancy and the physical and mental health of a pregnant woman.
Experts agree. Senior advocate Colin Gonsalves, who’s fought such cases in the past, explains his argument against this law to FIT.
"Many foetal defections are detected only after 20 weeks of the pregnancy. Keeping this in mind, the 20-week limit should be done away with like in other parts of the world. A woman has absolute right over her body." - Colin Gonsalves, Senior Advocate
Dr Duru Shah, a senior gynaecologist, adds that sometimes, the report takes 2 to 3 weeks to come after the tests have been carried out, and that doesn’t leave any window for termination within 20 weeks.
This leads women to approach the courts, who then may or may not be allowed to abort. But what about those who can’t? “This is highly discriminatory as those who cannot reach the court are not able to avail of this remedy,” says women’s rights lawyer Flavia Agnes.
So, if the law did not restrict it, the woman in this new case could have safely aborted the pregnancy after the deformities were diagnosed under the recommendation and supervision of qualified doctors.
"Medical innovations have made performing an abortion a highly sophisticated surgery. So, it is time we changed the archaic provisions. " - Flavia Agnes
In 1971, when the abortion law was formed, there were no ultrasounds or foetal monitors to give a high-tech peek at the developing baby. Now, when technology has made identifying deformities possible, doctors and activists feel the law should change.
"The law needs to catch up with the times. If a birth defect is detected at 30 weeks. The why deny the woman the right to abort? A committee of independent doctors should look into each case." - Dr Duru Shah, Senior Gynaecologist and Director, Gynaec World
The woman, in her plea filed through advocate Sneha Mukherjee, has contended that the restriction in the Act, limited to the phrase – the termination of such pregnancy is immediately necessary to save the life of the pregnant woman – was “unduly restrictive and is arbitrary, harsh, discriminatory and in violation of Articles 14 and 21 of the Constitution”.
The petition contends that the petitioner in the instant case has "suffered immense mental and physical anguish as a result of the unreasonable 20-week restriction under the Medical Termination of Pregnancy (MTP) Act.
It said that the abnormalities were detected during a level II ultrasound which showed that the foetus suffered from hydrocephalus, short spine and other deformities, reports PTI.
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