FEATURE: Second Trimester Abortion in India:
Extending the law from 20 to 24 weeks ************************************** 2 August 2016
Demonstration in Jammu, 20 December 2012,
in protest at the rape and brutalisation of a young woman in Delhi, Press TV
In 1971, the Government of India passed the Medical Termination of Pregnancy Act (MTP Act), one of the most liberal abortion laws of its day, which went into effect in 1972. It allowed abortion on a range of grounds – to save the woman's life, to preserve her physical or mental health, as a result of rape or incest, fetal impairment, and on economic or social grounds. Contraceptive failure on the part of a woman or her husband was also considered a ground; India is one of the few countries explicitly permitting this in the terms of the law. Unless it was deemed a medical emergency, abortion had to take place up to 20 weeks of pregnancy. Abortion has to be carried out by a registered physician in a hospital established or maintained by the Government or in a facility approved by the government. A second opinion is required in cases where the pregnancy is between 12 and 20 weeks, except in urgent cases. In general, the consent of the pregnant woman is required before the performance of an abortion, while written consent of her guardian must be obtained for a minor (defined as under age 18).
Although the law is liberal, a large proportion of abortions are unsafe or occur outside the terms of the law. Estimates show that of the 6 million abortions each year in India, 55-60% are still classified as unsafe, contributing to 8% of total maternal deaths, with younger women most at risk of complications. Moreover, some 25% of abortions in India take place in the second trimester, especially because girls and women face multiple barriers to accessing early abortion in many parts of the country.
Efforts to reduce obstacles both to providing and accessing safe abortions began starting around 2002, with varying success. In 2015, there were proposals to allow mid-level providers in India to provide first trimester abortions, especially given the high levels of usage of medical abortion, but opposition by obstetrician-gynaecologists was strong. A law which made ultrasound scans to determine fetal sex illegal, whose aim was to prevent second trimester abortions on grounds of sex, ended up restricting access to second trimester abortions no matter what the reason instead. Recent reports show that more and more providers are refusing to do any second trimester abortion due to concerns about being prosecuted, even though in the great majority of cases, other legal grounds are involved.
In the past four years and more, there have been mass protests across India at the extent of reported cases of rape, especially gang rapes and deaths following rape. A number of news stories have been reported about women who have been raped going to court to seek permission for a second trimester abortion beyond 20 weeks of pregnancy. All these issues have come together as these cases have created growing pressure to consider law reform to allow abortions beyond the 20-week time limit.
Cases in which women have gone to court for permission to have abortions after 20 weeks
According to doctors, most tests for fetal anomalies are carried out around the 18th week of pregnancy in India, and results may take three weeks to come back, putting many women beyond the 20-week legal limit. It is thought that 2-3% of pregnancies in India carry serious fetal anomalies.
In 2008, the Bombay High Court refused permission for an abortion "on expert advice" to a Mumbai-based couple who made headlines when they petitioned for permission to abort a pregnancy at 24 weeks, following a diagnosis of a serious congenital heart defect in the fetus and health problems in the woman, e.g. high blood pressure. The woman miscarried at 27 weeks. The Court observed that only the legislature could address the demand for a change in the legal time limit. The case triggered national debate on whether the law was out of date and started a process of re-evaluating its provisions, which may finally come to fruition this year.
According to The Ladies Finger, two cases were initially presented in a petition by a Mumbai-based doctor in 2009, who sought amendment of the MTP Act. In 2014, a bench of the Supreme Court admitted the petition, defended by the Human Rights Law Network on behalf of two women, who were identified as Mrs X and Mrs Y. Mrs X was informed by her doctors that the fetus in her pregnancy would not survive, but the Court rejected her plea at 26 weeks of pregnancy, and she was forced to carry the pregnancy to term. The child died three hours after birth and after three days of excruciating labour pains. Mrs Y was told in her 19th week that the fetus had anencephaly, but test results would only come out by the 20th week, so she was forced to terminate the pregnancy without full knowledge of the extent of the abnormality, because of the 20-week deadline. The Human Rights Law Network argued that the 20-week limit violated Article 14 (Right to Equality), Article 19 (Right to Freedom), and Article 21 (Right to Life) of the Constitution of India. This aspect has not yet been addressed.
In 2015, the Punjab and Haryana High Court rejected the plea of the father of a 14-year-old rape survivor to allow termination of her 24-week pregnancy, because she would be unable to take care of the child. The judge refused, saying [erroneously] that going ahead with the abortion would put her life at greater risk than continuing with the pregnancy if she had regular health checks. He required a hospital to give her a room, clothes and medicines, and ruled that the Department of Health should cover all her medical costs until the baby was delivered. The rapist was a 30-year-old who was a tenant in their house, who was charged.
In another judgment in 2015, the Gujarat High Court rejected the abortion plea of a 24-year-old who was abducted from her village in Botad and raped. She escaped after six months, but her husband and in-laws refused to take her back. The male judge presiding over her case said there was no question of allowing an abortion as the seven-month fetus had a high chance of survival, in spite of acknowledging: “I know the pain, agony and stigma in this case…” Forced to give birth to her rapist’s child, the young woman refused to keep it and handed over the newborn to the state government.
This same Gujarat High Court soon afterwards also rejected the termination of pregnancy in a 14-year-old girl whose family's plea for an abortion had already been rejected by a lower court. The girl had become pregnant in February 2015 after she was raped by a doctor to whom she had gone for treatment of typhoid. The case was appealed to the Supreme Court when the girl was 24 weeks pregnant. Her doctors stated in a report that she was “psychologically devastated” and “physically too weak to deliver a child”. The Supreme Court heard the appeal and agreed the abortion could take place. But the judgement was treated as a “special case”, meaning it could not be used as a precedent to grant permission in any other case. One of the judge's remarks in this case was that no matter how the child was conceived and no matter the trauma for the girl, the child was also not to blame for being conceived.
On 25 July 2016, in a landmark verdict, the Supreme Court, gave a woman who was 24 weeks pregnant permission to have an abortion. The woman stated that she was raped by her ex-fiancé on the false promise of marriage. She was granted an abortion on the grounds that the pregnancy would endanger her physical and mental health and that the fetus had multiple congenital abnormalities, including anencephaly, and that carrying the pregnancy to term would cause her mental distress. She also was represented by lawyers from the Human Rights Law Network (HRLN). The HRLN again questioned the constitutional validity of the MTP Act, specifically of Section 3(2) of the Act in regard to the upper limit of 20 weeks. They argued that this upper limit was unreasonable, arbitrary, harsh, discriminatory and violated the right to life and equality. Several doctors from reputable hospitals were called, who argued the law was outdated because it was possible with the advanced technology of today to do an abortion at any time in pregnancy without risking the woman's life. The HRLN again called for the relevant section of the law be declared unconstitutional or read down, and that a new time limit of 26 to 28 weeks be instituted. It also sought an order to set up expert panels at hospitals that provide abortions to pregnant women and girls who are survivors of sexual assault and have passed 20 weeks.
Attempts since 2014 to amend the law
Attempts to reform the 1971 law have not succeeded and in fact appear to be stalled. On 1 November 2014, after being pushed by doctors, activists and the National Commission for Women, the Ministry of Health and Family Welfare's Maternal Health Division proposed a bill to amend the 1971 Act to allow abortions on some grounds until the 24th week of pregnancy . The bill was posted on the Ministry's website for 10 days for comments. The bill would allow abortions from 20-24 weeks of pregnancy in cases where the pregnancy put the woman's life at risk physically or mentally, or posed a substantial risk to the fetus, and if the pregnancy is the result of rape, or due to the failure of contraceptive methods, all of which would be considered a grave injury to the mental health of the pregnant woman. Diagnosis of any substantial fetal abnormalities during the 20-24 week window would also be considered.
But the bill had a second purpose. It also greatly expanded the abortion provider base by allowing nurses, auxiliary nurse-midwives and certain practitioners of Indian systems of medicine to be trained to offer abortion services, particularly medical abortion. Major opposition to the expansion of the provider base by senior medical professionals, such as the Indian Medical Association and the Federation of Obstetricians & Gynecologists of India (FOGSI), led to the bill being withdrawn in early 2015.
In contrast, the Women and Child Development Ministry, the National Commission for Women and other women’s groups had backed the draft bill. “Approximately 64% of the responses received by the Ministry… are in favour of the draft. Women’s organisations too have supported it,” a government source said at the time. Another news source said that the National Commission for Women had also proposed allowing a 24-week limit for vulnerable cases, that is, for rape and sexual abuse, women with disabilities, severe fetal anomaly detected after 20 weeks, and women described as single (divorced, widowed, unmarried).
One recent news report said a revised bill was likely to come before the Cabinet soon; another, on 21 July, said the bill had gone before the Cabinet and if approved would be voted on. This is not confirmed. According to Vinoj Manning, Director of the Ipas Development Foundation in Delhi, since the bill was withdrawn, the Ministry has said they have been reviewing the contents, but no information is available in the public domain on the next steps. Recent news articles quoting Ministry officials state that preparation of amendments to the MTP Act is in progress and things would be moving soon. However, no revised bill was made public in 2015 nor so far in 2016.
Thanks to Vinoj Manning, Ipas Development Foundation, for reviewing this text and providing additional details.