It was in 2008, when Mumbai couple Haresh and Niketa Mehta petitioned the Bombay High Court to allow them to abort their 26-week-old foetus who had been diagnosed with a heart defect, that the fraught issue of the legal limit for abortion in an age of rapidly advancing medical technology, first burst on to the national scene.
The court did not grant the couple’s plea, saying medical experts had not categorically stated that the child would “suffer from serious handicaps”. It also said that their plea for a change in the law regulating abortions in India could only be addressed by the legislature.
Seven years on, the amendments to the Medical Termination of Pregnancy Act, 1971, that their case triggered, are still in the works — only to be challenged anew by a 14-year-old rape victim. The girl’s petition to the Supreme Court seeking permission for abortion beyond 20 weeks has been accepted as a special case, which is not to be used as a precedent to allow abortions beyond 20 weeks.
The draft Medical Termination of Pregnancy (Amendment) Bill, 2014, on which the Health Ministry invited comments last year, provides for abortion beyond 20 weeks under defined conditions. As per the draft law, the decision to allow abortion between 20 and 24 weeks can be taken “in good faith” by a healthcare provider if, among other conditions, the pregnancy involves substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been caused by rape”.
A revision of the legal limit for abortion is long overdue. The process of rethinking the 44-year-old MTP law has already taken years, but the issues go beyond the slowness of the process.
In the decades since the law was first enacted, the science on the subject has made enormous leaps — with the advent of ultrasound, magnetic resonance imaging (MRI) and foetal monitoring devices, predicting the health of the baby has become more accurate and sophisticated than anything that was conceivable then.
But even that is not the full India obstetrics story.
Sexual crimes, multiple pregnancies, the lack of decision making powers among women, social taboos and the crippling shortage of trained midwives and doctors have all contributed to the creation of a complicated situation in which a large number of abortions take place under the radar, carried out by quacks.
It is to tackle this problem that the proposed amendments to the MTP Act seek to allow Ayurveda, Unani and Siddha practitioners to carry out abortions, albeit only through medical means and not surgical ones. In a sense, say those involved in the drafting of the amendment Bill, it is a return to the concept of Registered Medical Practitioners with slight tweaking — they should be called, perhaps, “registered health providers”. Many countries, in fact, allow nurses to do first trimester abortions, that is, when the pregnancy is less than 12 weeks old.
Where the proposed amendments do move forward is in their reasons for allowing abortion up to 24 weeks of pregnancy. Medical experts rule out any safety concerns about the mother, and deem 20 weeks to be too small a window, especially when it is not before 18 weeks that foetal abnormalities start to show up.
Extending the time up to which an abortion can be legally performed is not just a question of ensuring the health of the mother and baby. It is also about ensuring access to a qualified doctor, a hygienic establishment and proper medical care for the mother during and after the abortion. It is not as though the 20-week ceiling stops expectant mothers with older pregnancies from undergoing abortion. And more often than not, she does so in the dark — in surreptitious, dangerous ways that puts her at serious risk, and may even kill her.
That the decision to have or not have a baby is not a mechanical one — merely about the mother’s physical wellbeing — is accepted as a principle in the proposed new Bill. It accepts that the anguish caused by pregnancy resulting from rape “may be presumed to constitute a grave injury to the mental health of the pregnant woman”. That, in essence, is also the spirit of the Supreme Court’s “flexible” order on the plea of the young girl.
Niketa was less lucky. Soon after failing to get relief, she miscarried.