SC allows abortion of 24-week foetus, but why should women go to court in the first place?

The Supreme Court on Monday permitted a woman in Mumbai to abort her 24 week foetus on the grounds that continuing with the pregnancy could endanger the life of the woman. Abortion is legal in India, but it's not at will, it's only permissible if it would involve a risk to the health of the pregnant woman.

The Medical Termination of Pregnancy Act makes a distinction between twelve weeks and twenty weeks. Under twelve weeks, an abortion can be prescribed by one doctor and after twelve weeks an abortion has to be be prescribed by two. If the pregnancy exceeds twenty weeks you go into the grey area of Section 5 of the Act which says that a medical practitioner, may in good faith, terminate a pregnancy if they feel it is necessary to immediately save the life of a woman.

However, the grey area exists because there are provisions in the Penal Code of 1860 that still criminalise abortion done in violation of the Act namely Section 312 of the Penal Code which could expose the doctor concerned to imprisonment of up to seven years. So doctors are very wary of taking that risk due to the language of Section 5, which uses the word "immediately". So when there is a situation where the life of a woman is at risk, the woman is put in a situation where she has to wait till the risk grows so high that she is immediately at risk of death before a doctor is willing to risk the law, or she has to do what the petitioner did, and move the Court for permission to have an abortion after twenty weeks.

Supreme Court. Reuters

Supreme Court. Reuters

Needless to say this is obscene, no matter what one's views on the subject, a decision to have an abortion to save someone's life should be one that is between a woman and her doctor and should not be one that's finally left up to three men in fancy dress in a court room as has been the case in India where there have been petitions to allow late-term abortions on a case by case basis.

Each case usually works on a similar basis, the court is never equipped to fully form a medical opinion, so it requests for one from the hospital concerned and after studying that opinion, it decides if it's going to permit an abortion or not. The decision at the end of the day should be a medical call and not a judicial call. If allowing the pregnancy to complete it's term would endanger the life of the woman, it should be the doctors who prescribe the abortion.

In this case, there is an urgent need to reform Section 5 of the Medical Termination of Pregnancy Act. Already, Section 4 of the Act specifies a place where a pregnancy can be terminated. Section 4 can be amended to state that pregnancies that exceed twenty weeks may only be terminated at Government approved hospitals. Further Section 5 can also be amended to put in place an institutional mechanism to approve when a pregnancy that exceeds twenty weeks can be terminated if it harms the life of a woman. A medical board may be constituted to which the treating physician may apply for permission and this board may also include a representative from an NGO to take care of the State's interest in preserving the life of the unborn. There is absolutely no need to invoke the jurisdiction of a court.

There is a legitimate interest the State has in preserving the life of an unborn child, which is why the medical termination of pregnancies in India is a regulated matter. However, the approach India takes is one that regulates pregnancies as medical matters rather than matters of personal choice. This outdated law, that requires women to move a court in order to terminate their pregnancies in cases of rape, incest or in situations where their lives are at risk merely because these situations came to light after an arbitrary time deadline expired is unnecessary an inhuman torture. (In cases of rape and incest, the victim may only come out and address the situation weeks after the act happened, so there may not be time to perform an abortion within the window)

A medical decision must be one that is between an individual and their physician and legal regulations cannot prescribe arbitrary cut offs such as twenty weeks. Abortion is a decision that is one of the hardest that most women have to make, asking them to move a court to save their lives one top of it, is unnecessarily cruel and inhuman. The law needs urgent amendment, Monday's order is just one of many that brings that to light.

Published Date: Jan 16, 2017 18:42 PM | Updated Date: Jan 16, 2017 20:12 PM

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