There is a need to de-stigmatise the termination of pregnancies and allow for late term abortions since a woman’s right to abortion is a necessary condition for her reproductive autonomy.
On July 25 2016, the Supreme Court of India, granted Ms X the “liberty … if she is so advised, to terminate her pregnancy” at 24 weeks. The judgment was based on the recommendations of a medical board comprising seven doctors from the KEM Hospital and Medical College, Mumbai. The board recommended that, “in view of severe multiple congenital anomalies, the foetus is not compatible with extra-uterine life”, that the “risk to the mother of continuation of pregnancy can gravely endanger her physical and mental health” and that the “risk of termination of pregnancy is within acceptable limits”.
In India, legal engagement with women’s reproductive capacities has been challenged by both the women’s movement and the health rights movement. The Medical Termination of Pregnancy Act, 1971 (MTP Act) itself was actually envisaged as a part of the Indian state’s efforts at enacting a policy of ‘population control’ which has since given way to a discourse on ‘population stabilisation’. The MTP tacitly incentivises having only two children by counting contraceptive failure as legitimate grounds for abortion stating it is “for the purpose of limiting the number of children”.
The debate on abortion often tends to pit women’s rights to reproductive autonomy and their bodily integrity against a foetus’ debatable right to life. The issue of when a foetus is considered to gain such ‘right to life’ is also fraught with contentions. However, it is essential to engage with women’s bodily integrity by contextualising the issue by raising deeply unsettling questions about: disability, congenital deformities and caring for disabled children without adequate social security and infrastructural support. In polarised debates between people who identify as pro-life or anti-abortionists and pro-choice proponents, it is easy to pit one against the other, but it is far more complicated to bring them together. We need to guard against a eugenic push to beget ‘perfect’ and ‘normal’ children as well as resist the patriarchal pressure for sex-selective abortions in order to have an ethical approach to the debate on women’s reproductive rights.
Globally, among the countries which permit abortion, very few allow abortions for foetuses older than 20 weeks while several other countries do not allow abortions at all. There was global furore in 2012 against the death of Savita Halappanavar, a woman of Indian origin living in Ireland – she was denied medical assistance to clean her womb of foetal remains after she suffered a miscarriage and subsequently succumbed to septicemia. More recently, Purvi Patel, another woman of Indian origin but living in the US, was sentenced to 20 years’ imprisonment by courts in Indiana, US. She was charged with foeticide and child neglect for inducing an abortion and then disposing of her foetus at home. While her defence put the foetal age at 23-24 weeks, the prosecution claimed it was 25-30 weeks old. However, on July 22, 2016 she won her appeal against the conviction and was exonerated of foeticide but found guilty under charges of neglecting a dependent – a crime which has a sentencing range of six months to three years according to Indiana laws.
In India, the recent Ms X judgment has rekindled the debate on the MTP’s provision which permits abortion till the foetus is 12 weeks old and also grants permission for abortions in the 12 – 20 week period of pregnancy provided two medical examiners permit the procedure. Beyond this time frame, abortions are not permitted and thus individual women have had to seek intervention from the judiciary – either on account of grave danger to their own health or because a pre-natal diagnosis revealed a high likelihood of congenital diseases or disabilities when the child is born. In the case of Ms X, it was both. In this particular instance, the assigned medical board assessed that even if the foetus were carried to full term, it was not going to survive outside the woman’s body for longer than 72 hours (due to lack of a developed brain). Doctors would have had to extract the foetus and hand over the ‘product of conception’ to the police in keeping with medico-legal procedures even if Ms. X were to continue with the pregnancy.
A woman’s right to abortion is a necessary condition for her reproductive autonomy and must not be pitted against abstract and unqualified questions dealing with ‘life’ when it comes to her pregnancy . There is a need to de-stigmatise the termination of pregnancies and allow for late term abortions. Not all cases reach courts, but there are instances when women may want access to an option for abortion beyond 20 weeks of pregnancy. Women with irregular menstrual cycles may not even be aware of their pregnancies until the end of the first trimester. Many such women are very young, unprepared for motherhood and often face stigma in hospitals for demanding abortions, especially if it is their first pregnancy. They are often asked to show consent from their families or husbands in case they are married. On the one hand, such apathetic treatment in the hospital infantilises a woman in this situation and on the other hand, it thrusts the responsibility of child rearing on them. Such instances often force women to induce abortions with drugs purchased over-the-counter or access unsafe abortions through quacks in unhygienic conditions. Denying women access to abortion impinges greatly on their right to reproductive autonomy and adds to their vulnerabilities.
While hearing Ms X’s plea, the Supreme Court ordered a medical board to asses the situation and relied on the board’s medical advice, since the foetus was beyond the MTP’s permissible legal limit of 20 weeks old. However, it was yet another lost opportunity since the court stopped short of stipulating that for future cases concerning late term abortions, medical boards be constituted without approaching the court. There is also a need to rethink whether medical considerations of a woman’s health should be the sole factor in allowing late term abortions. It is unfortunate that an adult woman’s desire for terminating a pregnancy is not sufficient unless a medical board determines that there is a danger to her physical and/or mental health. There is a pressing need to revise the 20 week limit that abortion laws uphold in India. Even if there is a biological justification around jeopardising her health to set the timeframe as such, technological advancements in medical science necessitates that it be rethought. Viewed from the perspective of the right to reproductive autonomy, women’s health is not comprised of merely physiological aspects, but also shaped by their socio-cultural and psychological contexts.