Raising the choice ceiling

A rape survivor’s petition could prompt a judicial relook at the 20-week cut-off for abortion in India

July 24, 2016 12:21 am | Updated December 04, 2021 11:07 pm IST

Last week, a rape survivor, in the 24th week of her pregnancy, challenged abortion laws in India, triggering a debate over the moral and ethical implication of criminalisation of abortions after the 20th week of pregnancy.

In India, the Medical Termination of Pregnancy (MTP) Act bans abortions after 20 weeks, therefore not accounting for circumstances like foetal abnormalities detected after that period. However, it is the 24th week when, medically, a foetus is considered ‘viable’ — meaning babies born this early have a significant chance of survival due to improvements in medicine — causing pro-choice advocates to demand that the ceiling for legal abortion be extended to this point.

The abortion cut-off

In some cases, diagnosing abnormalities in a foetus can extend beyond the 20th week, forcing the pregnant woman to make a difficult decision on whether to abort the pregnancy without sufficient information, says Dr. Alka Kriplani, President of the Federation of Obstetric and Gynaecological Societies of India (FOGSI). “There is no doubt in my mind that [a] majority of the abortions in India happen before the 20th week. In cases where malformation in foetus has been detected late, abortion should be allowed till the 24th week — which is ample time to detect malformations. There had been cases where babies born in the 22nd week have gone on to survive and grow up to be healthy babies. Personally, I feel it is unethical to allow abortions beyond the 24th week.”

The 20-week limit is, increasingly in India, being seen as a violation of a woman’s fundamental right to life, health and choice, says Dr. Rishma Pai, consultant gynaecologist at Lilavati and Jaslok hospitals in Mumbai. “India has always had a liberal approach to abortions — we are among the few countries where a husband’s consent is not required for abortion. But with changing times, and the fantastic new diagnostic methods available, there is a need to modify the laws,” she says.

Need for a wider margin

Due to the 20-week cut-off, pregnant women in India go through anomaly screenings in the 18th week, giving a two-week margin for consultation. “Since changing laws takes time, in the meantime, we should create a panel of experts, approach them in unique circumstances where the lives of the mother and child are in danger. We need an interim solution before the Supreme Court gives a final word on the case,” adds Dr. Pai.

In the Supreme Court, the petitioner has alleged that she was raped by her ex-fiancé on the false promise of marriage and became pregnant. She sought a direction to quash Section 3 (2)(b) of the Medical Termination of Pregnancy Act, 1971, to the extent that it puts a ceiling of 20 weeks for an abortion. Further, she has submitted in the court that her physical and mental health have been put at risk due to the 20-week limit for abortion as her foetus suffers from anencephaly (a serious birth defect in which a baby is born without parts of the brain and skull) but doctors have refused to abort it.


What the law says:

If a woman is married, her own consent is enough. The husband’s consent is not required.

If a woman is unmarried and over 18 years of age, her own consent is enough.

If a woman is unmarried and under 18 years, a written consent from the legal guardian is required.

If a woman is of unstable mental health, a written consent from the legal guardian is required.

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