After a Week’s Delay, Court Allows 26-Week Pregnant Women to Abort

The MTP Act fails women yet again, as two 26-week pregnant women, wait for permission to abort.

The Medical Termination of Pregnancy Act allows for abortion only up to 20 weeks.

(Photo: iStockphoto)

Two women, in separate petitions, had moved the Delhi High Court to seek permission for abortion 25 weeks into their pregnancies. The court's judgement came after more than a week - when it allowed the termination in both the cases.

On Friday, 20 September, the court had directed the medical board at the Maulana Azad Medical College (MAMC) to examine these women and carry out the abortions immediately, if required.

The matter was to be heard on 23 September. It was adjourned to 27th and then to 30th. The board's recommendations came on 27th, in which it stated that the abortions carried risks, but the women could go ahead if they wished to. The risks were due to a low-lying placenta in one case and heart disease in the other — a common one being the 'advanced' stages of both pregnancies.

The board’s recommendation in the cases.(Advocate Photo: Sneha Mukherjee)

The board’s recommendation in the cases.(Advocate Sneha Mukherjee)

FIT spoke with Sneha Mukherjee, the advocate who filed the two petitions. She explained that the doctors were already aware of these complications, and the women were also informed beforehand. With all parties aware of the risks, it was decided that they would want to continue with the termination.

While the judgement comes as a reason to rejoice, there is one thing that cannot be ignored — the delay. The board was directed by the court on 20 September. They came out with their evaluation a week later.

With this, the two women, who were both 25-week pregnant at the time of the petitions, spent another week in anticipation and trauma — increasing the chances of ‘irreparable damages’ to their health.

The urgency that such cases need to be dealt with cannot be stressed enough. Yet, women at vulnerable stages of their pregnancies were made to wait for a ruling, that eventually may not have even been in their favor.

Here's what the almost-identical petitions stated:

“The ground for urgency is that the Petitioner is pregnant with 25 weeks of gestational age and the fetus suffers from hypo-plastic kidneys and therefore making it improbable for the fetus to survive and causing continued trauma to the petitioner, who seeks medical termination of pregnancy and if the same is not heard immediately, it shall cause irreparable damage to the health of the petitioner.”

The advocate also questioned certain clauses of the Medical Termination of Pregnancy (MTP) Act. The 20-week gestation limit for seeking abortion, section 3 (2) (b) of the Act, has been an obvious concern.

The petitions state that the technology available today allows women to abort 'at any point during the entire period of pregnancy'. Therefore, the restriction needs to be challenged and the law must be updated.

How the Court & the MTP Act Let Women Down

These cases have brought into question the provisions of the MTP Act yet again. Why is abortion still not a woman’s right? Why is the court not being prompt and treating these cases on priority? Why are the women ‘waiting’ for ‘permission’ to terminate their pregnancies, when they know they want it, and when advances in technology make it possible for them to get it done?

Mihira Sood is a Supreme Court lawyer specializing in women's rights. Speaking to FIT, she says, “When the law prescribes a time-bound period within which a woman can abort, it defies logic that the courts would not treat such cases as top priority.”

On whether women should be taking the call to have a child or not, regardless of their reasons or the months into their pregnancies, she adds, “Caring for a child is a difficult and time consuming process, the burden of which tends to fall on women, and therefore they are best placed to decide whether or not it is appropriate for them to bring a child into the world.”

“Moreover, the time limit, if at all required, should be realistic and flexible. Women often discover such anomalies with the fetus very close to or after the termination window has lapsed, and it takes time to process the information, take the decision and make arrangements for the procedure, especially if so much paperwork is involved.”

Mihira Sood

Dr Nozer Sheriar is former secretary general of the Federation of Obstetric & Gynaecological Societies of India (FOGSI).

“This is truly tragic. We have let them down. The court needs to either tell the doctors to go back and do their jobs, or pressurize the government and ask why they are sitting on the 2014 amendment.”

Dr Nozer Sheriar

He explains that the amendment has been misunderstood as just an extension from 20 to 24 weeks. The truth is that when it comes to birth defects, women must be allowed to terminate the pregnancy at any time.

“The problem is that we are confused. Something that was and should have been obvious, is now a topic of consultation. Pregnant women are being told to go to the court and seek permission. Their decisions depend on a community of medical professionals who are not directly involved with them. They could easily say the problem could be ‘fixed’. But what if the women don’t want it to be fixed? What if they don’t want the child to suffer in the future?”

Dr Nozer Sheriar

He adds that our law talks about the ‘risks’ of physical and mental health to the women, but not about actual medical abnormalities — that should be dealt with medically and not after procuring permissions. There is a difference in birth defects (or abnormalities) and direct risks, and there is no reason that the former alone is not considered a legitimate reason for abortion.

“The total number of late-abortion cases in the Supreme Court or High Courts are around 200. A simple internet search about cases across countries would reveal that over a lac women terminate their pregnancies in the later stages. So one lac women need it and only 200 go to the court. And even among them, not everyone gets the permission.”

Dr Nozer Sheriar

We have truly underestimated the problem, he adds. “Why are we forgetting the abortion debate? Why aren’t we moving ahead?”

Dr Puneet Bedi is a gynecologist and obstetrician at Apollo Hospitals, New Delhi. He stresses on the need for the law to be updated. “We still don’t have in place a proper abortion law. It is still banned beyond 20 weeks — even when abortion is actually possible throughout the pregnancy.”

“Laws need to be rationalized and updated after consulting the concerned parties. Abortions later on in the pregnancy need to be facilitated. We need a proper pro-choice and pro-rights law.”

Dr Puneet Bedi

Abortion has been legal in India for 48 years now since the MTP Act came about in 1971, but it is yet to become a woman’s right. The MTP (Amendment) Bill, 2014, which aimed at allowing abortions after 20 weeks under special circumstances, is still being debated in the Parliament.

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