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 The gestational age limit of 20 weeks on abortions is today understood as arbitrary and grossly outdated by gynaecologists and obstetricians across the board.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.

THE INFLUX OF COURT PETITIONS 

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.

ABORTION LAW, ITS RUN-IN WITH POCSO

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.

ABORTION LAW AND SEX DETERMINATION

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”.

IN COLD STORAGE: MTP ACT OF 2014

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

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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


TNN |

HIGHLIGHTS

  • 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

Child denied abortion, mother asks: What does a 10-yr-old know


The girl, subjected to repeated rape, allegedly by her maternal uncle, is approximately 30 weeks pregnant, according to doctors at the Government Medical College and Hospital (GMCH), Chandigarh, who have examined the girl.

SHE loves to draw, and her favourite cartoon on television is Pokemon. Her elder sister says her favourite subject is English, though for many months now, she has not attended school. At their one-room home, the servant quarters of a government official’s residence in Chandigarh, the 10-year-old girl walks around for a few minutes in the lawn — “doctors have said she should remain active”, says the mother.

The girl, subjected to repeated rape, allegedly by her maternal uncle, is approximately 30 weeks pregnant, according to doctors at the Government Medical College and Hospital (GMCH), Chandigarh, who have examined the girl. On July 18, Chandigarh’s Additional District and Sessions Judge Poonam Joshi turned down permission for the medical termination of her pregnancy on the basis of a report by doctors at GMCH who said that if the girl went in for an abortion, there could be “high chances of physical trauma”, considering her age and her health – three years ago, the girl had undergone a surgery at PGIMER for a hole in her heart. A Delhi-based lawyer has now filed a Public Interest Litigation in the Supreme Court, seeking medical termination of her pregnancy. The case is coming up for hearing on Monday.

“What does she know, she is only 10 years old. She doesn’t understand all this, she has no idea about her pregnancy. Our plight has become public news… we didn’t want that. We just want her to be healthy and happy. We don’t need any help, we are okay alone. Her father doesn’t want us to talk or say anything about her. He is a broken man since we found out,” said the mother, her eyes brimming with tears.

The mother works as a domestic help at the government official’s residence. Her husband is a watchman in the UT administration, and is studying for an MBA degree through correspondence. The family is originally from Nepal and has been living in Chandigarh for several years.

Last week, it was a neighbour who first noticed the 10-year-old’s swollen stomach and brought it to the mother’s notice. “She is a bright girl, regular to school. She would come to me, for help with her English or maths, sometimes with her homework. She was always quick to respond and answer questions. I was the one who asked her mother why her stomach was swollen,” the neighbour said.

“I asked the girl if she was taking medicines for her heart, thinking the swelling could be a side effect of the medicines. She seemed to have put on weight, but the bulge looked like a pregnancy. When I asked her mother if the girl’s periods were regular, she said she hadn’t had them for some months. I asked her to immediately take the child to the doctor,” the woman said.

That same evening of July 13, the mother’s relatives bought home a pregnancy test kit, which confirmed their worst fears. That’s when the girl said her uncle had raped her “five or six times” and allegedly warned her not to talk about it to anyone.

On July 14, the mother lodged an FIR with the police, accusing her brother of rape. The mother told the police that her brother, a watchman in Chandigarh’s Sector 35 and a frequent visitor to their home, had stopped visiting them in March. Police have arrested the 40-year-old, who is now in judicial custody in Burail jail. His wife and three children are in Nepal.

On July 15, after the family approached the district court, the judge ordered the constitution of a medical board with experts from GMCH and asked them to submit a report on the feasibility of medical termination of pregnancy for the 10-year-old.

“We informed the district court that there are high chances of physical trauma. A psychiatrist who was on board concluded, after interacting with the victim, that she doesn’t understand that she is pregnant or the implications of being pregnant,” said a doctor from the Obstetrics & Gynecology department at GMCH who was a member of the medical board constituted by the court.

The Medical Termination of Pregnancy Act(MTP), 1971, does not permit termination of pregnancy after 20 weeks, but in some cases, courts have made exceptions, especially when continuation of the pregnancy poses a danger to the mother or the unborn child.

“‘We submitted our report to the district court after examining the patient and going through the available law and rules. Since the victim’s pregnancy is in an advanced stage, it is a matter of saving two lives. Let the Honorable Supreme Court take a call now on the matter,” said the doctor.

After an examination of the girl, doctors at GMCH found that at this stage, the baby has to be delivered prematurely. “The case can no longer be considered for abortion. It has to be considered as a premature delivery now,” said another doctor at GMCH who is familiar with the case. Doctors said that they cannot predict the outcome of the case or the baby’s chances of survival in case of a premature delivery. The girl’s health, especially her heart ailment, is also a worry, say doctors. “We don’t know what is going to happen in this particular case. The pelvic bones of the 10-year-old are not fully developed,” said the GMCH doctor.

Doctors at GMCH said they are also considering sending the girl to PGIMER. “This is a very unique case and we don’t really know what is going to happen… Infection and hemorrhage to the girl at the time of delivery could be some of them,” said a doctor from the department of Obstetrics and Gynecology at PGIMER.

Source:http://indianexpress.com/article/india/child-denied-abortion-mother-asks-what-does-a-10-yr-old-know-4763037/

KEM hospital panel that ruled out abortion of foetus with neurological problems did not have subject specialist


 Child born after Supreme Court turned down plea to abort pregnancy in critical condition at KEM hospital

Mumbai city news
(HT File)

Last Saturday, a 28-year-old woman gave birth to a boy with Arnold Chiari Syndrome Type-II — fluid accumulation in the brain and spinal deformities that leave him little chance of survival. She and her husband had moved the Supreme Court to be allowed to abort her pregnancy in the 27th week once they knew about the problems the foetus had, but the court had on March 27 turned down their plea based on the report of an expert team of doctors from Mumbai’s KEM hospital. The child is now in a critical condition at the KEM hospital where he was born. The law now prohibits abortion of foetus beyond 20th weeks, unless otherwise advised by a medical panel.

It now transpires that the expert panel did not have a neurologist on it though the foetus had a complex neurological condition. Chiari malformations cause structural defects in the cerebellum (part of the brain that regulates muscular activity) and children with Type-II re usually born with incomplete development of the spinal cord and its protective covering.

“There should be a neurologist on board while preparing reports on such cases because he will know the condition of the woman and foetus better. A neonatologist or general surgeon, based on hearsay evidence, cannot offer an accurate prognosis,” said a senior doctor from KEM Hospital who was involved in the case. The doctor spoke on condition of anonymity.

 

The KEM hospital dean, Dr Avinash Supe, said, “The law doesn’t permit us to advise the SC on whether the abortion should or shouldn’t be permitted. We can only analyse the medical condition of woman and foetus and offer a clinical suggestion on whether the child is ‘incompatible with life’.”

The committee had reported that if the mother was allowed to abort, the child might be born alive. “Complications could’ve been much worse then. Right now, they are at least clinically treatable,” Dr Supe added.

Dr Devi Shetty, founder and chairman of Narayana Health, who recently submitted a report based on which a woman from West Bengal was allowed to abort in the 27th week of pregnancy, told HT that an expert committee did not need doctors from specialities such as neurology or cardiology.

“If the foetus is diagnosed with any structural deformities, related to heart, brain or other vital organs which will limit its lifespan or the deformity itself is incurable, then the woman should be allowed to abort until week 26 or 27 of gestation. In today’s world, technology does the diagnosis and anyone with a post-graduate medical degree can be called upon as an expert by the courts,” said Dr Shetty.

 

The Mumbai woman underwent a scan at a civic-run maternity home in Borivli in the 15th week of her pregnancy, but the neurological malformation was not picked up then. The second scan was done in the 24th week, when doctors finally diagnosed the anomalies.The rate of survival is as weak as 1.2-2 per 1,000 births.

Solicitor General Ranjit Kumar had told the Supreme Court bench that as per the report of the medical board of KEM Hospital, the foetus has severe physical abnormalities but the doctors have advised against termination as the mother was in the 27th week of pregnancy.

Dr Nikhil Datar, gynaecologist and obstetrician who is a prime petitioner in the case before the Supreme Court seeking extension of the pregnancy termination limit to 24 weeks, blamed the civic-run clinic’s inability to detect the malformation in time for the couple’s present predicament.

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