Indian women seeing abortions beyond 20 weeks face desperate legal struggles

On Monday, the Supreme Court allowed a woman from Mumbai who is 24 weeks pregnant to have an abortion because her foetus had anancephaly – a life threatening condition in which the baby does not have parts of brain and skull. India’s 45-year-old law governing abortion – the Medical Termination of Pregnancy Act– allows a woman to abort her foetus only up to 20 weeks of pregnancy. In July, the Supreme Court allowed a rape victim to abort her 24-week old foetus. The Centre has put out a draft amendment in 2014 which is yet to be passed in the Parliament. Dr Nikhil Datar, medical director of Cloudnine Hospital in Mumbai and petitioner in both the Niketa Mehta case in 2008 as well as the case that was decided on Monday, spoke to Scroll.in about the need to amend the Act to increase the 20-week limit.

Ten years ago, I had a pregnant woman come to me who delayed getting her sonography, which is normally scheduled between the 18th and 19th week of pregnancy. She came to me in the 22nd week of pregnancy with a report that was devastating. The foetus had significant hydrocephalus – fluid had collected in the brain – and spina bifida with the lower part of the body paralysed. I had to explain to the patient that there was a significant chance that her baby could be born in a vegetative state or severely retarded both physically and mentally.

On hearing this, the woman wanted to terminate the pregnancy. I told her that that her pregnancy had advanced beyond 20 weeks. Although termination of pregnancy is medically easy it is illegal and criminal in India to terminate a foetus older than 20 weeks. I told her that I would not perform the medical termination of her pregnancy but also that I would not come in her way if she wanted to go to another doctor. However, the woman kept asking me to perform the abortion while I kept refusing as I never wanted to be a part of illegal activity.

I delivered the woman’s baby and I tried to see that she had the best possible care. The baby lived for a few years –debilitated and in a vegetative state. The child had no bowel control and suffered severe mental retardation. The mother gave up her job. Their family was not financially well off but all their resources were directed towards the care of this child.

I would see this patient often and I could sense that she felt I was indirectly responsible for her plight. But we were in a wrong system with the wrong laws. Telling someone to continue their pregnancy against their will is wrong. Making them desperate enough to terminate their pregnancies illegally, maybe in some corner of the village and risking their life, is equally bad.

The Niketa Mehta case

In 2008, Niketa Mehta came to me after 20 weeks of her pregnancy had passed with a diagnosis that her foetus had a severe heart problem. When she said she wanted to terminate her pregnancy, I told her that I was with her ethically, emotionally and morally but I could not help her end her pregnancy. I could only help her take the matter forward legally. She was willing to challenge the law, but wanted me to be the first petitioner. That is how we moved the Bombay High Court.

There was no such case in the history of the Indian judiciary. We lost the case in in Bombay High Court but I decided that I was going to pursue the cause, even though Mehta had a miscarriage at this time and lost the foetus.

Under normal circumstances, pregnancy causes a lot of stress for a woman. When she gets a prognosis that the pregnancy is bad and further, that she will have to continue the pregnancy to term, it is absurd, unfair and unjust and against human rights and health rights.

The 20-week deadline

Before 1971, India’s law did not allow abortion at all. Under the Medical Termination of Pregnancy Act passed in 1971, woman have been allowed to seek termination of pregnancy. The job of a doctor, under this law, is that of a gate keeper here, to facilitate the termination of pregnancy under the following conditions. A woman is allowed to abort a child if there is substantial risk to mother’s life, if there is a risk to her physical or mental health or there is a risk of the child being born with a handicap. For the later two indications, the law allows termination only up to 20 weeks of the pregnancy.

Here is the problem – why this cut off at 20 weeks?

Neither the Shantilal Shah Committee report on which the Medical Termination of Pregnancy Act is based nor the Parliamentary archives contain any documents explaining the 20-week limit. One can only guess that the deadline was decided based on the time around when women start perceiving movements of the baby. In the days before sonography doctors would detect the signs of life in the foetus only around this time.

Some people argue that an abortion beyond 20 weeks is risky to the life of the woman. That might have been the case 45 years ago but does not hold true today. The United Kingdom allows abortions till 24 weeks and, if there is a risk to the life of the woman and a substantial risk of the baby being born handicapped, the pregnancy can be terminated any time. China allows abortions till 28 weeks.

Another argument that is sometimes put forward is that allowing abortion beyond this time frame will lead to an increase in sex-selective abortions. In my 25 years as a gynaecologist, I have seen that those who want to undergo sex-selective abortions do not wait till they cross 20 weeks. On the pretext of controlling sex-selective abortions we cannot let other women suffer because the government is not able to control sex determination.

Yet, I have demanded in my petition to the Supreme Court that late terminations should be adequately scrutinised by a committee and performed only at specific hospitals after due diligence and quality control.

Small moves in the right direction

While we can understand and appreciate that in 1971 it was a very big leap to legalise abortion, we also need a law to keeps pace with advances in health technology. Since the Niketa Mehta case case – legally documented as Dr Nikhil Datar Vs Government of India – there have been many encouraging movements by the government. In 2009, a committee headed by the then health secretary Naresh Dayal said that abortion should be permitted up to 24 weeks. The Women’s Commission of India has also written to the government to seek similar amendments to the Act. In 2014 government itself proposed a draft amendment to the Medical Termination of Pregnancy Act that addresses the problem but has yet to be passed by Parliament.

There have been a slew of individual cases seeking abortions after 20 weeks. In the past year, there have been high court and Supreme Court judgments allowing medical terminations beyond 20 weeks.

Last week, I had four patients beyond 20 weeks of pregnancy with severe anomalies in their foetuses. If a single doctor has so many cases in just one week, one can imagine the magnitude of the problem. This is a serious public health hazard, and it is high time the government either amends the law or passes an ordinance to extend the limit on terminating a pregnancy and empower women to make their own decisions regarding their reproductive rights.

As told to Menaka Rao.