Abortion
Experts say that the Union government’s response to the SC has no basis in the MTP Act, and that implicit in its response is the desire to control women’s bodies.
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The discussion on abortion is at a contentious point globally. In India, abortions are governed by the Medical Termination of Pregnancy (MTP) Act, 1971, which allows a medical practitioner to terminate a pregnancy within a period of 20 weeks, with a caveat that the 20-week cut-off won’t apply if a medical practitioner is of the opinion that that the termination of such a pregnancy is necessary to save the life of the pregnant woman.

While the MTP Act did not evolve as a reproductive rights-based legislation, nowhere does it talk about the right to life of a foetus, nor its viability after the pregnancy has progressed to a certain point, as factors to deny an abortion. However, the Union government recently took a stand that the state has a duty as the guardian of its citizens to “safeguard the life of a child in the womb after it has attained a stage of viability”.

The Union government was responding to a writ petition in the Supreme Court for raising the cut-off for legally terminating a pregnancy from 20 to 26 weeks. In its response, the government has registered its opposition to the same, arguing that the petitioners seek to “de-humanise and desensitize the citizens of India including children, pregnant women, the disabled and even the role of parents”, and that granting the petitioners’ prayer would “set an abhorrent constitutional precedent of law, morality and jurisprudence for future laws and amendments and will suppress and demonise the sensitivities and morality of public society.”

Experts say that the Union government’s response has no basis in the MTP Act, despite its claims, and that implicit in its response is the desire to control women’s bodies.

The ‘viability’ argument

The Union government has said that the right to privacy of procreation is not an absolute right, and that “right to reproductive autonomy does not outweigh the interest of the state in protecting the life of the foetus in the womb, especially from the point of viability, i.e. from the period of 20 weeks onwards.” It has also argued at multiple points that the MTP Act’s cut-off of 20 weeks is prescribed because the foetus becomes ‘viable’ after that – meaning it can survive on its own if the woman were to give birth.

Anubha Rastogi, an advocate practising in Mumbai, points out that the MTP Act does not recognise the reproductive rights of a woman. “It is based on medical opinion, and gives direction to medical practitioners on the circumstances under which abortion is allowed. However, nowhere does it say that the 20 week cut-off exists because the foetus becomes viable after that.”

Medical practitioners point out that unlike countries such as the US and Sweden, India does not have the infrastructure and facilities to support a foetus that is only 20 weeks old, and therefore, the viability argument rests on thin ice.

In India, a foetus may only be viable during the third trimester (after 28 weeks); and the risks associated with abortion at 26 weeks are not much more than at 20 weeks. Further, Dr Shaibya Saldanha, gynaecologist and founder of Enfold Trust, points out, “In many cases, we also don’t have the after birth care for premature children. So, many of them have prematurity issues that drag on through life.”

The ‘good’ mother image

The Union government’s response has, at multiple points, made arguments that seem to imply that a ‘good’ mother would not go for an abortion even if the foetus is detected with an abnormality. One of the petitioners in the present case was a woman who, at 26 weeks of pregnancy, discovered that the foetus had anencephaly, a birth defect where a baby is born without parts of the brain and skull, and she hence sought an abortion.

While maintaining that it would have been possible for the petitioner to find out if the foetus had an abnormality before 26 weeks as well, the Centre has made statements such as the following:

“[…] in several cases pregnant mothers despite knowing that child was disagnosed with anencephaly chose to carry the pregnancy to term as the joy of spending a few hours with your child far outweighed the sorrow of losing the child and further helped them cope with the loss.”

“Several studies have repeatedly shown that mothers prefer a child with extremely severe disabilities than a dead child.”

“Similarly, the Petitioner in effect has stated that since the child was likely to die in the future, therefore it should have died in her womb before delivery instead. It is absolutely abhorrent and legally unjustifiable for this Hon’able Court to sanction murder of a child (unborn) who is viable.”

“Unborn child cannot protect itself from the harm designed by his/her very own mother.”

Dr Sylvia Karpagam, a public heath researcher, says that in making statements like these, the government seems to be attempting to control women and their bodies. “It’s like saying this is what they should feel, and anything else is wrong. To make statements like these is a very top-down approach and places disproportionate emotional burden on women; unlike men, who have more acceptance when they vary in response to their children. Women are also similar.”

It boils down to choice

Experts say that refusal by hospitals or certified medical practitioners to perform abortions may compel women to go to quacks, or push them into unsafe situations – and this is completely avoidable.

Unsafe abortions are the leading cause of maternal mortality in India, studies have found, and vulnerable and disadvantaged populations are at a disproportionately higher risk. This has been one of the biggest arguments for making safe abortion accessible in India, even beyond 20 weeks.

However, a lot depends on the medical board that is set up by a court when a woman seeks to terminate a pregnancy older than 20 weeks, Dr Shaibya says. If the medical board feels that the foetus is viable at 20 weeks, and there is no harm to the mother’s health in carrying the pregnancy to term, it may not recommend an abortion; and the court’s decision is likely to be based on the same. However, according to the Indian Medical Board and many international standards, a foetus becomes viable only when it is 28 weeks old.

“If a woman is okay with having a special needs child, she won’t seek abortion in the first place. But she may not want to do so for several reasons including resources, support, and the capability to care for such a child. By compelling her to carry forward the pregnancy, we are making her and the child vulnerable to a lot of mental and emotional anguish,” Dr Shaibya argues. 

“Post-partum related causes are also responsible for several maternal deaths. What is the state doing about those?” Dr Sylvia adds.

In this context, not only is the Union government’s response worrisome, but the MTP Act also needs to change. “The law needs to keep up with time and technology, and recognise the fact that a woman has to have the choice,” says Anubha.