The Supreme Court on September 6 allowed the termination of a 31-week-old foetus for a 13-year-old rape survivor in Mumbai. She had petitioned to the SC for aborting her foetus as it was endangering her health. The Medical Termination of Pregnancy (MTP) Act of 1971 prohibits abortions of foetuses over 20 weeks old. The SC’s welcome decision for the Mumbai survivor is in stark contrast to the 10-year-old rape victim in Delhi who was forced to give birth after the Delhi High Court denied permission to abort the foetus that was 26 weeks old at the time of moving to Delhi HC. But the SC rushed in to make up for Delhi HC’s insensitive stance by ordering a compensation of Rs 10 lakhs for the survivor citing the reason as a failure in granting permission to abort her foetus.
The SC’s progressive stance on abortion is reassuring and highly welcome at this point. But will this be enough? Can we bank on the apex court to be amend the MTP? Because the 20-week termination period is not the only problematic area in the MTP. According to the Act , abortion is still a conditional right, which means that a woman can abort a foetus only if it has a physical or mental handicap, is a danger to the health of the mother or in the case of contraceptive failure. In July 2016, the SC allowed a 34-week-old foetus to be aborted citing birth defects and danger to the life of the mother carrying it.
The problem with such a clause is that it leaves a fair amount of decisive power in the hands of the doctor rather than the woman choosing the termination. According to a report, the doctor consults the family of the pregnant woman before choosing a course of action to proceed with the abortion. This not only lengthens the process but also violates the privacy of the woman, who may have chosen to not involve anybody in the decision concerning her body. So the discretion of abortion still lies with the family and not the patient herself.
Many activists have suggested and pled with the SC to to extend the abortion deadline to 24 weeks in the MTP Act, to train more doctors to carry out abortions. But the SC fears that the amendment will lead to more sex determination rackets and higher female foeticide rates in the country. This is a valid concern but technological advances in screening and examining pregnancies can more effectively prevent sex determinations. Plus, if the amendment does include a clause for compulsorily training more doctors in abortion procedures, it could prevent sex determination rackets.
The SC has granted more pleas than it has rejected when it comes to abortion cases. This gives us reason to believe that the highest court in the country is open to amending laws to better suit the rights of women in modern India. Abortion laws have always held a tenuous place in Indian society, but the clauses that prevent women from terminating their pregnancy beyond 20 weeks and violate their right to privacy need to be scrapped sooner than later. Here’s hoping the SC takes its progressive march to better shores for women’s rights.