Abortion: It’s every woman’s right to choose

According to the latest estimates published in the December issue of The Lancet, in 2015, a staggering 15.6 million abortions occurred in India. Of these 15.6 million abortions, 73% were sought outside health facilities. While unsafe abortions in the country have reduced significantly, about eight lakh women still resort to unsafe means to end an unwanted pregnancy.

Police officers drive their bicycles past a mural art by Brazilian artist Carlos Bobi in Rio de Janeiro, Brazil, Wednesday, January 3, 2018. According to Bobi, the mural represents a special moment of his ex-wife's pregnancy. As in many countries, abortion is a subject of taboo in Brazil
Police officers drive their bicycles past a mural art by Brazilian artist Carlos Bobi in Rio de Janeiro, Brazil, Wednesday, January 3, 2018. According to Bobi, the mural represents a special moment of his ex-wife’s pregnancy. As in many countries, abortion is a subject of taboo in Brazil(AP)

Last year, in what is considered a landmark judgment, the Supreme Court ruled that individual privacy is a “guaranteed fundamental right”. The nine-judge bench ruled that the right to privacy is comprised in the right to life and liberty guaranteed in Article 21 of the Constitution. This judgment will have significant implications for the protection of citizens’ personal freedom against intrusions by the State. While the furore about privacy and its breach began with the linking of Aadhaar numbers with various programmes, the judgment addressed several other issues that the bench believed came under the ambit of privacy. Recognising a woman’s prerogative to make decisions about her health and body, the bench ruled that “there is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as guaranteed under Article 21. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.” The judgment further states that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”

An extremely progressive and far-reaching judgment, the Supreme Court’s ruling is commendable given the realities on the ground where women are often denied the right to make decisions about their reproductive health. Abortion – a key reproductive choice – is not a right in India. A woman cannot walk into a health facility and demand an abortion with no questions asked. In fact, abortion is provided to her solely at the discretion of the medical provider under certain conditions defined by the Medical Termination of Pregnancy Act, 1971, which include substantial risk to the woman’s life or to her physical or mental health, substantial risk to the life of the foetus, pregnancies resulting from contraceptive failure in case of married women, and pregnancies resulting from rape.

Moreover, if a woman wants to terminate her pregnancy in the first trimester, the law requires that she get the consent of one medical practitioner. For terminating a pregnancy second trimester onwards, she needs the consent of two medical practitioners. This is particularly difficult for a woman in remote locations where it can often be challenging to find even one medical practitioner.

Additionally, women in India still experience provider bias, especially if they are unmarried and seek an abortion. Contrary to the provisions of the MTP Act, many providers also continue to ask for the husband’s consent before performing an abortion, thus undermining a woman’s choice to make that decision herself.

According to the latest estimates published in the December issue of The Lancet, in 2015, a staggering 15.6 million abortions occurred in India. Of these 15.6 million abortions, 73% were sought outside health facilities. While unsafe abortions in the country have reduced significantly, about eight lakh women still resort to unsafe means to end an unwanted pregnancy.

In light of the judgment on privacy, a multi-pronged approach needs to be adopted to ensure that no woman resorts to unsafe means and methods to terminate a pregnancy because she is unable to access safe abortion services. At the policy level, the Medical Termination of Pregnancy Act, 1971, must be amended to allow women to receive abortion on request, which, in turn, could increase access to safe abortion care.

This should simultaneously be supported by efforts to build awareness and educate women and the community on their sexual and reproductive health and rights (SRHR), including their right to access safe abortion care. More importantly, we must sensitise our healthcare providers and implementers of the law to recognise a woman’s right to reproductive choice, privacy and dignity and to provide services free of bias and judgment.

While the right to privacy is not absolute and is subject to reasonable restrictions, it is nonetheless a fundamental right, not a statutory or a common law right. The State should take steps to ensure that a woman’s right to reproductive choices is mainstreamed and embedded in the public health agenda. They must urgently reassess and amend the laws that impact sexual and reproductive health and rights (SRHR) in India, especially the MTP Act.

If a woman so chooses to, she should be able to access abortion on request at any point within the legal gestation limit.

It must be ensured that SRH services and policies, including those for abortion, are designed in a manner that takes into account a woman’s reproductive choice, protects her privacy and dignity and enables her to lead a full and productive life.

Soli Sorabjee, Former Attorney General of India



Bombay HC allows woman to abort 27-week foetus with abnormalities

India’s Medical Termination of the Pregnancy (MTP) Act, 1971, permits pregnancies to be terminated up to 20 weeks, but courts make exceptions keeping in mind woman’s physical health.

Kanchan Chaudhari
Hindustan Times, Mumbai
The Bombay High Court ruling, by a division bench of Justice RM Borde and Justice Rajesh Ketkar, was not made on exceptional grounds but on a very liberal interpretation of the law.
The Bombay High Court ruling, by a division bench of Justice RM Borde and Justice Rajesh Ketkar, was not made on exceptional grounds but on a very liberal interpretation of the law.(HT File Photo)

In a liberal and progressive interpretation of the Medical termination of Pregnancy (MTP) Act, the Bombay High Court on Tuesday allowed a woman to terminate her 27-week pregnancy, taking into consideration the physical and mental trauma she would suffer if the child was born with severe abnormalities.

The foetus she is carrying has severe abnormalities.

India’s Medical Termination of the Pregnancy (MTP) Act, 1971, permits pregnancies to be terminated up to 20 weeks, but courts make exceptions beyond 20 weeks after a board of doctors confirms continuing the pregnancy is a risk to the woman’s physical health. In this case, the board that examined the woman said there was no risk to her life.

That put the high court bench in a bind. It could have allowed a termination under two conditions: under Section 5 of the law to save the woman’s life (irrespective of the pregnancy duration) or under Section 3(2), if the pregnancy is not more than 20 weeks old, if it poses grave injury to the woman’s physical or mental health, if there are chances of the baby being handicapped, or if the pregnancy is a result of rape or contraceptive failure.

To be sure, there have been instances of courts permitting termination of pregnancies that are older, but these have been exceptions.

The Bombay High Court ruling, by a division bench of Justice RM Borde and Justice Rajesh Ketkar, was not made on exceptional grounds but on a very liberal interpretation of the law. The bench said Sections 3 and 5 were required to be construed harmoniously with the object of the enactment.

“If conditions laid down in sub-Section 2(b) of Section 3 of the (MTP) Act are fulfilled, it would provide good ground for exercise of Section 5 of the Act,” said the bench.

Specifically, the bench took note that Section 5 of the law uses words specifically excluding the limitation set out by Section 3 and that, therefore, the emergency clause in Section 5 could be invoked irrespective of the length of the pregnancy.

Besides, it said, the construction would also be in tune with the proposed amendment to the MTP Act, which seeks to extend by four weeks the limit of 20 weeks set out in Section 3.

The MTP (Amendment) Bill 2014 proposes to relax the upper limit of legal abortion from 20 to 24 weeks and make access easier by widening the provider base by training auxiliary nurse midwives (ANMs), nurses, and AYUSH practitioners to terminate early-stage non-surgical pregnancies; introduce a confidentiality cause; and remove the need for a doctor’s second opinion for second-trimester pregnancies.


What’s wrong with India’s abortion laws?

GenderAnd Development: The tricky debate on Abortion: Where the Medical Termination of Pregnancy Act conflicts with two other laws?

Nandini Rathi


This August, the denial of abortion to the 10-year-old rape survivor from Chandigarh by the Supreme Court made headlines, shocking the country and leaving the medical community split in opinion. While the young girl has been recuperating at home from her C-section delivery and from what could only have been mental and physical trauma, the onslaught of women and girls seeking permissions for late-term abortion to High Courts and the Supreme Court continues. On November 22, PTI reported that a 12-year old rape survivor from Khargone, Madhya Pradesh gave birth under C-section after her abortion plea was rejected by the High Court, citing her age and risk, earlier in September. This little girl’s pregnancy had been first discovered more than three months ago in August. While it was then just over 20 weeks, following the letter of law, abortion had been treated a foregone option and denied.

The Medical Termination of Pregnancy (MTP) Act of 1971 permits abortions after consultation with one doctor up to 12 weeks. Between 12 to 20 weeks, medical opinion of two doctors is required. Further, only a registered allopathic physician in a registered facility is authorised to conduct the procedure. Beyond the 20 weeks ceiling, exceptions are legally permissible only if continuation of pregnancy poses a threat to the mother’s life.

The 46-year-old law has been under fire from doctors and lawyers for failing to move ahead with the times. There are several issues. The gestational age limit of 20 weeks on abortions is today understood as arbitrary and grossly outdated by gynaecologists and obstetricians across the board. Rare foetal abnormalities can be detected via ultrasound only around this period and the mother is usually past the 20-week milestone by the time these can be confirmed. Further, the Act does not recognise a woman’s choice in asking for an abortion, as legally she remains at the disposal of a physician’s judgment even in the early stages of pregnancy.


While MTP Act itself does not direct anyone to approach the court for permission to terminate pregnancy post-20 weeks, the recent few years have seen a rush of court petitions seeking permission for abortion. Often these have been either rape survivors with unwanted pregnancies or couples who found out about foetal abnormalities that are either incompatible with survival or posed the risk of substantial handicap to the baby upon birth. The curious aspect is why these cases are suddenly coming to court with increasing frequency only now, despite the fact that the MTP law is unchanged, and issues of foetal abnormalities as well as rape-related unwanted pregnancies in minors are something doctors have always dealt with in professional capacity.

“If you ask any obstetrician in this country who has practised for 10-20 years, you will find that they have always terminated pregnancies of advanced [post 20 weeks] durations on obstetric and medical grounds,” says Dr. Nozer Sheriar, former Chairperson of the MTP Committee and secretary general at Federation of Gynaecologists and Obstetrician Societies of India (FOGSI).

Advance prenatal diagnoses, which enable foetal abnormalities to be discovered typically between 20-24 weeks, became routine around two decades ago. Managing the aftermath was not considered by most gynaecologists as traditional MTPs. Until a few years ago, most gynaecologists all over the country were managing abnormal patient pregnancies, along with termination if needed by taking a medical call over the matter, after counselling the patient and with her written permission.

The gynaecologist/obstetrician of the patient maybe in the best position to make a medical decision based on risk, in some cases. But the Supreme Court and High Court judgments over the last few years have been inconsistent and ad-hoc on these matters; they have both permitted as well as turned down various women requesting abortions and hence now doctors are unsure about their decision-making territory. “Because of all these cases coming up, physicians are also confused as to whether to term them as MTPs or obstetric decisions. I think clarity is urgently needed in this matter,” says Dr. Jaydeep Tank, a Mumbai-based gynaecologist and obstetrician and Deputy Secretary General of FOGSI. He personally feels that such cases should not strictly fall under the MTP Act as they could interfere with the obstetrician’s decision making.


A pregnant minor, under the MTP Act, can legally receive an abortion with the consent of a legal guardian. Under the Protection of Children from Sexual Offences (POCSO) Act 2012, any sexual activity under the age of 18, even if consensual, comes under the scrutiny of law. Thus, if any adolescent goes to a doctor seeking any services related to reproductive health, including abortion, the doctor is mandatorily required to report that to the authorities. So while MTP Act regulations lay down a careful confidentiality procedure for the doctor to protect the identity of the abortion-seeking girl, POCSO on the other hand necessitates disclosure to the authorities. “A lot of 17-year-olds, who would have gone to a doctor because that would have been the right way to get an abortion, suddenly now think ‘if I go to the doctor, the police will be informed. So maybe I am better off somewhere else’,” Dr. Sheriar explains.

The situation has became more dire, after the Supreme Court last month got rid of the exception for child brides and increased the age of consent to 18, regardless of marital status. While the intention behind the POCSO provision is well meaning, an estimated 47 percent of women in India are still married under the age of 18 and hence considerable sexual activity does take place among minors. The conflict between the laws results in a collateral damage where adolescents may be forced to turn to unsafe abortions.


Another law that trips doctors from performing genuine abortions is the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 (PC-PNDT) which criminalises sex determination of the foetus during ultrasound. Often, law-enforcing authorities feel that if they indiscriminately crackdown on abortions in general, they will be able to prevent sex-selective ones and female foeticide, Dr. Tank explains.

With a lot of attention and pressure from authorities due to PC-PNDT, doctors are wary and not doing what they initially did with a clear conscience, says Dr. Sheriar. As one senior gynaecologist running a private hospital said, “Even though I have performed an abortion for a genuine reason, in case the aborted foetus turns out to be a female, who would want to get caught up in a cycle of giving explanations in government offices” or worse, risk having their establishment discredited over such an accusation.

Given the present circumstances, doctors feel that urgent clarifications are required on the matter because when providers of safe and legal abortions turn women away, the remaining gap is filled by unqualified persons and quacks. “Just because of a fear of misuse, creating no mechanism and giving no relief to genuine people is wrong,” says gynaecologist and health rights activist Dr. Nikhil Datar.

Only a handful of women–make it to the courts, where they currently face additional trauma due to delays of legal proceedings, all the while with a pregnancy that is steadily advancing. Asked what happens to all the other women and where they go, Dr. Datar says, “No one knows”.


A historic abortion legislation like India’s MTP Act in the 70s ensured that only law and medical opinion, as opposed to any religious dogma, prevailed in matters of pregnancy terminations. It also necessitated the consent of the pregnant woman alone, assuming she was a major. But a progressive law alone did not guarantee access to safe abortions. 10 women die everyday in India due to unsafe abortions and many more suffer from complications as a result of it.

“The cases that have come to the courts and in the spotlight of media are in the direction of foetal abnormalities and rape pregnancies. But that is a very small percentage out of all women deprived of safe abortions,” says Vinoj Manning, Executive Director of Delhi based non-profit Ipas Development Foundation. Currently, 50 percent of all abortions performed in India are estimated to put women’s health and lives to undue risk and that is above all due to an acute shortage of trained providers. This is one of the issues that the MTP Act Amendment bill, proposed in 2014, aimed to solve by authorizing AYUSH doctors, trained nurses and auxiliary nurse-midwives (ANMs) – after mandatory training — for performing non-surgical abortions via pills. The bill is however in cold storage and not taken up by the parliament since October 2014.

In addition to the fact that a woman’s right to abortion is a necessary condition for her reproductive autonomy, there is also a dire need to keep the woman’s needs at the center from a public health perspective. As Dr. Suneeta Mittal, Director and HOD in Obstetrics & Gynaecology at Fortis Medical Research Institute Gurgaon, who has worked in women’s healthcare for nearly 40 years, said in a recent panel discussion, “No legal barrier, no religious barrier, no administrative barrier and no political barrier can stop a woman from getting an abortion, if she decides not to continue [her pregnancy]. By refusing her, you are pushing her towards unsafe abortions”.

SOURCE-  Indian Express

Himachal HC allows rape survivor to abort 32-week fetus

Anand Bodh| TNN |

Representative ImageRepresentative Image
SHIMLA: The Himachal Pradesh high court has allowed abortion of a 32-week-old fetus of a 19-year-old rape survivor, who has mild to moderate mental retardation.

A division bench of Justice Dharam Chand Chaudhary and Justice Vivek Singh Thakur directed the medical superintendent of Kamla Nehru Hospital in Shimla to arrange for termination of the teenager’s pregnancy under supervision of a medical board constituted by the court.

The law allows medical abortion till 20 weeks of pregnancy, unless mother’s life is at risk. The Supreme Court had in July denied permission to a 10-year-old rape survivor to terminate her 32-week pregnancy, but had recently made exception and allowed abortion at 24 weeks due to life threatening condition.

The bench also directed the hospital to preserve the DNA of the fetus so that it could be used during the course of investigation, inquiry and trial in the rape case registered in Kullu district.

On October 6, the court had directed that the petitioner be examined by a medical board, comprising at least five doctors and headed by head of the department of gynaecology of any of the state-level hospitals.

SC allows two rape victims to abort, orders preservation of fetus for DNA test to help nail accused



  • The bench directed preservation of the terminated fetus for DNA sampling during the investigation
  • SC medical expense of process of termination of pregnancy would be borne by the respective states

Representative photoRepresentative photo

NEW DELHI: The Supreme Court on Thursday permitted two minor girls to terminate their pregnancies caused by rapes and added a new dimension by ordering preservation of the foetuses to help nail the accused during the sexual assault case trial.

One is a 13-year-old from Delhi and another a 17-year-old from Bengaluru and both are rape survivors. A bench of Chief Justice Dipak Misra and Justices Amitava Roy and A M Khanwilkar ordered termination of their pregnancies, which were beyond the permissible period of 20 weeks under the Medical Termination of Pregnancy Act, 1971.

The Delhi girl will undergo the MTP in AIIMS on Friday and the Bengaluru girl will terminate her pregnancy in Bangalore Medical College and Research Institute (BMCRI). The court directed AIIMS and the Karnataka government to bear the expense of the medical procedures required for termination of the pregnancies and food and medicines required by the girls.

Counsel in the two cases — Nikhil Nayyar and Divyesh Pratap Singh — requested the court that since both the pregnancies were caused by sexual assault, it would be helpful if the aborted foetuses were preserved for DNA test to assist the prosecution in nailing the guilt of the accused.

SC passed the orders after medical boards in AIIMS and BMCRI recommendation.

SC allows 13-year-old rape survivor to abort her 32-week-old foetus

The minor girl’s mother had moved the apex court seeking its permission to terminate the pregnancy of her daughter.
 (Photo: PTI/File)

  (Photo: PTI/File)

New Delhi: The Supreme Court on Wednesday allowed a 13-year-old rape victim to terminate her 32-week-old pregnancy.

In the last hearing, a bench comprising Justices SA Bobde and L Nageswara Rao directed that a medical board would be constituted at Mumbai-based Sir JJ Group of Hospitals to examine the minor girl and ascertain the condition and advisability of permitting abortion.

Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act prohibits abortion of a foetus after 20 weeks of pregnancy.

The minor girl’s mother, through advocate Sneha Mukharjee, had moved the apex court seeking its permission to terminate the pregnancy of her daughter.

Earlier, on July 28, the top court had rejected a petition, on medical grounds, filed by another 10-year-old rape victim, who sought permission to terminate her 32-week-old pregnancy. The minor girl had recently delivered a child in Chandigarh.


The court’s order had come after taking note of a medical report that abortion would neither be good for the girl, nor for the foetus. The minor girl had recently delivered a child in Chandigarh.http://www.deccanchronicle.com/nation/current-affairs/060917/sc-allows-13-year-old-rape-survivor-to-abort-her-31-week-old-foetus.html

Malformed baby born to Mumbai woman denied abortion by SC dies

Representative image Representative image
MUMBAI: A 28-year-old Diva resident who was denied permission by the Supreme Court in March to abort her severely malformed foetus, watched her baby die, said family friends. The news of the child’s death comes just as a 13-year-old rape survivor’s plea for abortion beyond the permissible 20-week time limit was filed in the SC on Wednesday. Last month, the Supreme Court had turned down a plea for a 10-year-old rape survivor to terminate her 32-week pregnancy.

“The child passed away around a fortnight back,” they said. The child was born on July 1 at civic-run KEM Hospital, Parel, which gave a medical report that formed the basis of the court’s refusal. The woman is said to be in anguish and away in her native village at the moment. Her distraught father said he no longer wanted to speak on the issue.

The Diva woman’s plea was turned down on a technicality that the child would be born alive. In her petition, she mentioned the plight of her severely handicapped and bed-ridden brother as one of the reasons for seeking abortion. She told TOI in March she had helped her parents, who live in Dahisar, take care of her brother. She used to carry her brother to and from the bathroom. He was so sensitive to sounds that Diwali would be a no-fun period for the entire family; even sounds of crackers bursting would trigger seizures in him. She even told the KEM medical team that she didn’t want a disabled child as she saw the sacrifices and troubles her family has been through.

Gynaecologist Dr Nikhil Datar, who helped the woman move the SC, confirmed the baby’s death. Underlining the need to extend the deadline for medical termination beyond the present 20 weeks, Dr Datar said, “An abnormality, whether detected early or late, carries the same prognosis. Just because an arbitrary or unscientific deadline has been crossed doesn’t mean the outcome will change. There is no point in further traumatising a woman, the baby as well as an entire family by prolonging life.”

The medical fraternity has been demanding an increase in the abortion limit to 24 weeks. Dr. Bipin Pandit, a gynaecologist, said, “Many foetal abnormalities can be diagnosed only after 20 weeks. Certain deformities can be diagnosed earlier, but by the time the family comes to terms with the issue, they near the 20-week deadline. The only way to resolve such situations is to increase the abortion limit to 24 weeks.” Dr. Pandit added that the drugs to induce abortion in the second trimester have considerably improved and have become safe and more accessible.

Dr. Pandit said women who are forced to deliver malformed babies and undergo the trauma of seeing them die, are vulnerable to postpartum depression.

He said, “It is very simple. They are expecting a bundle of joy and suddenly someone tells them that there is a problem. But after diagnosing the problem, the solution has been denied to the woman. Is it fair?”

Dr Subha Sri B, chairperson of Chennai-based NGO CommonHealth, pointed out when a woman decides to terminate a pregnancy, it is not a frivolous decision. “It is not as if a woman wakes up one morning and decides to terminate. She may be forced by circumstances, but she is ultimately the one who will face consequences of the birth,” she said. Moreover, the state doesn’t provide any support for women and their special needs children-a point the Diva woman, who hails from a humble background, had raised.

TOI and The Hindu

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