Why are you whiling away your time doing all these things? Don’t you have patients?’ That’s what people tell Nikhil Datar, 54, the gynaecologist who began the battle that eventually pushed India to update its abortion law in 2021. It took 14 years, many court cases and, along the way, he got a law degree too.
Datar, the son of a gynaecologist mother and an award-winning violinist father, says his activism can sometimes overshadow his day job, though he has a thriving practice in Mumbai’s western suburbs. His contemporaries often don’t understand his passion for justice, but he brushes off the detractors. “Legal activism is not my profession. It is my passion,” he says.
I often wonder why the term ‘pro life’ is used exclusively to describe those who lobby against abortions. Datar is pro life too — he is an advocate of a woman’s right to lead her life on her own terms and make decisions about her body. He believes that a woman must be in charge of her own womb. “As a society, we need to collectively align behind a woman.” As the global debate around autonomy and reproductive health intensifies, it’s a relief to meet a gynaecologist who is pro a woman’s life.
A legal marathon
These days, Datar’s pushing the State government to set up a mechanism to validate living wills, but he’s mainly been a champion of women’s reproductive rights in courtrooms. He fought his first case in the Bombay High Court in 2008 with a woman who wanted an abortion at 24 weeks because her foetus had multiple cardiac complications. The law, not updated since it was introduced in 1971, only allowed abortions until week 20. They lost the case, but Datar appealed and asked that the court consider 24 weeks as the upper limit for an abortion. That was the start of a legal marathon.
In 2016, he fought another case of a rape survivor on the same issue — this time in the Supreme Court — and won. After that there was no stopping a team of people led by the Human Rights Law Network from filing abortion cases in the top court. Datar played the role of cheerleader, advisor and medical expert. “At one point, we had so many cases on the board of the Supreme Court, it was a modern-day satyagraha,” he says. “They had to take note.”
Eventually, Justice A.K. Sikri instructed the high courts to hear the issue, despite that first defeat in 2008. In the years until the amendment, there were a total of 324 cases in the high courts and the Supreme Court, most of which women won. The government was under pressure to change the law.
In 2021, the Medical Termination of Pregnancy (Amendment) Act extended the upper gestational limit for abortion to 24 weeks from 20. Datar could have breathed easy, but he immediately filed another petition after reading the fine print.
Two of the many things that bothered him were the fact that the amendment ignored those who were single and in consensual relationships; and that it didn’t provide an exception for minor rape survivors whose pregnancy might have gone beyond 24 weeks. “It’s very clear that for a minor to carry a pregnancy to term is a health hazard, but we seem to be more interested in the life of the unborn rather than the girl’s life that lies ahead of her,” he says.
Datar feels relief when he encounters judges who understand the language of the U.K.-based bioethics think tank Nuffield Council on Bioethics that emphasises a woman’s right to the final say about her body. Many judges just follow what a three-member medical board recommends and this is one reason why abortion judgments in our country differ wildly.
The recent overturning of western abortion gold standard Roe vs. Wade doesn’t bother Datar as much as our understanding of the subject. “People feel the U.S. is regressive and we are progressive,” Datar says, adding that in the west, the “pendulum has shifted from 100% pro choice. Individual states now have the power to decide about abortion but not individual women.”
India, though, doesn’t even get the language right, using the long-winded term ‘medical termination of pregnancy’ (which Datar says can also be interpreted as separating the foetus from the womb via an elective procedure) instead of abortion. “We were never pro choice, never pro life, we have always been in the middle and confused,” he says. “Western countries are very clear about their understanding — they call a spade a spade.” The 2021 amendment attempts to offer a definition, but Datar says it’s flawed.
In his days working as a postgraduate teacher at the government-run Cooper Hospital in Mumbai, Datar helped set up a protocol to treat rape survivors and introduced a rape kit for doctors. “It made things easier for doctors who had studied sexual assault only as a tiny part of their five-year MBBS course, often as a four-mark short note,” he says.
The author is a Bengaluru-based journalist and the co-founder of India Love Project on Instagram.
