When Mumbai-based Shalini* walked into the State-run J.J. Hospital in December last year seeking an abortion, she was turned away. Doctors at the hospital decided that her case was legally complicated. Her pregnancy had crossed 20 weeks, she was unmarried and the reason for her pregnancy was determined “as due to failure of contraception”. She then approached the Wadia Hospital, a charitable institution, which too turned her away.
Shalini wanted to discontinue her pregnancy as she was not ready to have the baby. When her pleas to two hospitals fell on deaf ears, Shalini had to finally move the Bombay High Court citing the Supreme Court judgment to get a favourable recourse.
Despite the fact that in September last year, a three-judge Bench of the Supreme Court passed a judgment that unmarried women too can terminate their pregnancy until 24 weeks, the situation on the ground remains dismal. Women are having to run from pillar to post to seek abortion.
Nikhil Datar, a senior gynaecologist and medical director at Cloudnine Hospital, says that despite the “SC having given an extremely progressive judgment on an individual case basis, the verdict leaves much to be desired”. Dr. Datar’s activism since 2008 had helped pave the way to amend the rules of Medical Termination of Pregnancy (MTP) Act, framed in 1971. He has helped 320 women access abortion pro-bono by helping them challenge the MTP Act provisions in court.
The SC judgment is progressive. However, a Catch-22 arises because there is no clear indication in the SC judgment telling the government to amend Medical Termination of Pregnancy Act to include unmarried women under the extended 24-week ambit.
Dr. Datar further explains, “It would have been better if the court had directed the government to change rules in accordance with the judgment. Unless rules in the Act are changed in black and white, women will find it difficult to seek abortion in health facilities.”
Rule 3(2)(b) of the MTP (Amendment) Rules, 2021 does not permit single women to abort after 20 weeks. Dr. Datar says that the rule is discriminatory as it only allows “special categories” including survivors of sexual assault, minors, widows or divorcees, women with disabilities, a malformed foetus or women stuck in humanitarian emergencies, to access abortion post 20 weeks.
Amit Mishra, a practicing lawyer in Delhi, had moved the SC against this discrimination, in the case of an unmarried 25-year-old Manipuri woman which led to the landmark verdict last year. Mr. Mishra told The Hindu that even after the judgment, many doctors are apprehensive citing the fact that the Act has not been amended.
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Mr. Mishra also points out that doctors are scared of prosecution under the complex labyrinth of laws which includes linking of MTP with the Indian Penal Code. “Under section 3(1) of IPC, termination of pregnancy is a criminal act if it does not fulfil MTP conditions. With the law not amended, this has a chilling effect on doctors when police are not aware of the recent SC judgment,” he says.
“The government will have to step up to promote safe abortions irrespective of the fact that the woman is married or not. This can include putting up awareness boards outside hospitals citing the judgment,” he said.
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Dr. Datar has moved the Supreme Court filing another Special Leave Petition (SLP) challenging the current MTP (Amendment) Rules, 2021. “There are multiple loopholes in the current rules which need to be addressed,” he says.
For instance, currently there is no mechanism under the rules to monitor the movement of abortion pills. Mifepristone and Misoprostol are popular drugs used for medical abortion at clinics. “These clinics are not registered as approved places under Section 4 of MTP Act. There is no mechanism created in the law for collection of data from clinics or doctors prescribing these pills,” Dr. Datar explains.
Satara-based advocate and activist Varsha Deshpande concurs. “Data on abortion through medical methods are not captured, which creates a lacunae and opens up a huge grey market,” Ms. Deshpande said.
Another lacunae highlighted by the SLP is that the current MTP amendment has created a new institution called “medical board”. This board consists of a gynaecologist, paediatrician, radiologist and so on. “Gynaecologist is the only member from this board who by virtue of training, qualification and experience can take a final decision. In case a board takes decision on basis of majority of the votes, the opinion of one gyanaecologist may go unheard. The Act should be amended such that gynaecologist is empowered to take final decision after consultation of all members of the board,” the petition says.
*Name changed
