Every one in five cases brought before various high courts seeking permission for abortion is from a minor or a woman allowed under the law to terminate her pregnancy but is unable to exercise that right, a new study reports.
The two-part legal report, ‘Assessing the Judiciary’s Role in Access to Safe Abortion- II’, brought out by the Pratigya Campaign — a network of over 110 individuals and organisations working for access to safe abortion care in India — also records a sharp rise in the total number of abortion cases brought before high courts over the past few years. Between May 2019 and August 2020 — the study period of the latest report — there were a total of 243 cases across 14 high courts and one appeal before the Supreme Court. The previous report had recorded only a fourth of these cases per year on an average, with 175 cases between 2016 and 2019.
The Medical Termination of Pregnancy (MTP) Act, 1971, permits abortion within the first 12 weeks of a pregnancy with the opinion of one doctor and within the first 20 weeks with the opinion of two doctors. Yet, of the 243 cases, 23% were filed within the 20-week gestation period and should not have gone to the court at all. 18% of them were related to sexual abuse or rape and 6% were of foetal anomaly.
“The rise in the number of cases before High Courts where the Medical Terminal of Pregnancy Act, 1971, allows abortion within the 20-week gestation is a sign of confusion on the ground. This shows that petitioners are being advised to seek a court order for abortion. Barring one or two courts, no one has questioned why such cases were being brought before them. As a result, this has become an accepted norm,” says Anubha Rastogi, lawyer and member of Pratigya Campaign Advisory Group, who authored the report released last week.
In the Bombay High Court, which heard 129 cases or 55% of the total, 18 were filed before the 20-week cut-off. Thirteen of these were due to foetal anoamlies and five due to rape. Sixteen cases were heard by the Gujarat High Court over the 15-month period, of which 10 were under 20-week gestations. The report asks why these courts didn't question the necessity for the petitioner to approach the court.
Further, 112 of the 243 cases were brought before high courts during the lockdown, when only very urgent cases were being heard. This highlights the additional hurdles faced by women which could have been prevented by an enabling law.
The MTP Amendment 2020 Bill passed by Lok Sabha in March and pending before Rajya Sabha, allows abortions on the advice of one doctor up to 20 weeks, and two doctors in the case of certain categories of women between 20 and 24 weeks. It also sets up a state-level Medical Board to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities.
“Even if the MTP Amendment Bill 2020 is passed in the current form, the number of cases approaching the courts is not likely to reduce. Therefore, to avoid this, the proposed amendment to ‘increase the gestation limit from 20-24 weeks’ should be extended to all pregnant persons who need to terminate a pregnancy, instead of being restricted to only certain categories of women as defined in the MTP Rules,” says V.S. Chandrashekar, Campaign Advisory Group member, Pratigya Campaign.
“Currently abortion is a conditional right and is available only based on the opinion of the doctor. I strongly believe that first trimester abortions should be allowed as per request/decision of the pregnant person and it should become a legal right. Moreover, constituting Medical boards at all levels would be an operational nightmare. Medical boards will further add to delays and complicate access to abortion, apart from putting unnecessary burden on an already weak health system. The number of specialist doctors to constitute such boards is limited in many districts and smaller towns,” said Ms Rastogi.