Make it women-friendly

In a significant decision, the Bombay High Court has clarified the law on abortion in India. It is legal. Every woman has a fundamental right to her sexual and reproductive autonomy and choose whether to retain her pregnancy or not. But this is not an absolute right, and is subject to certain exceptions in law, as prescribed in The Medical Termination of Pregnancy Act, 1971 (MTP Act) which seeks to provide for the termination of certain pregnancies by registered medical practitioners. Section 3 of the Act provides that a registered medical practitioner can terminate a pregnancy up to 12 weeks, or two registered medical practitioners can terminate a pregnancy up to 20 weeks if they are of the opinion that continued pregnancy would involve a risk to the pregnant woman's life or cause grave injury to her physical or mental health, or there exists a substantial risk to the child's health. The MTP Act further allows termination of pregnancy beyond twenty weeks, if the doctor opines that such termination is immediately necessary to save the woman's life.

However, doctors are highly reluctant to conduct abortions beyond 20 weeks without court approval. In most cases, women seeking abortion after 20 weeks have to approach the High Courts or the Supreme Court, who then set up a medical board consisting of a panel of doctors to decide whether abortion could be allowed or not. In Ms. Z v. State of Bihar (2018), a woman was raped in a shelter home, and her request for abortion in 17 weeks was not allowed by the hospital. When she approached the High Court, she was again denied, which was overturned by the Supreme Court. However, she was already 26 weeks' pregnant by the time her matter was heard in the Apex Court, and she was not allowed to abort. The Supreme Court held that "the duty cast on the authorities under the Medical Termination Pregnancy Act, 1971 is not dutifully performed, and the failure has ultimately given rise to a catastrophe, a prolonged torment".

In the present case, referring to various High Courts and Supreme Court decisions, the Bombay High Court gave certain interim directions for the implementation of the MTP Act. The High Court categorically held that a registered medical practitioner is entitled to terminate a pregnancy beyond 20 weeks if she is of the opinion that such termination is necessary to save the life of a pregnant woman. But if she opines that there is no immediate danger to the life of pregnant woman, then she is not entitled to terminate the pregnancy beyond 20 weeks without court's approval, even if such pregnancy may cause grave physical or mental harm or there is a substantial risk to the child. In the latter case, the pregnant woman has to approach the High Court directly to seek permission for termination of pregnancy beyond 20 weeks. The Court further directed the State to set up medical boards in each district in order to examine pregnant women and assess the feasibility of termination of pregnancy beyond 20 weeks.

It is argued that though the High Court attempted to clear the confusion regarding termination of pregnancy beyond 20 weeks, by doing so, it has made the law on abortion more difficult for women in India. As noted before, the issue of termination of pregnancy exceeding 20 weeks is a vexed one plaguing the courts for the last many years. The High Court's distinction between cases with an immediate risk to woman's life, and those where the same risk is not there, but there's a substantial risk to her physical/mental health or to the child is a flawed one. The High Court failed to take note that while there may not be an immediate risk to her life, to force her to approach the Courts which would then take their own time to set up a medical board to assess pregnancy would cause irreparable damage to her physical/mental health, especially if there is a delay in adjudicating the matter, like what happened in Ms. Z v. State of Bihar. In many cases, by the time the Supreme Court or the High Courts allowed the termination of pregnancy, several weeks had passed, thereby making it impossible to conduct the termination, and forcing women to bear unwanted pregnancy.

It is an irony that a law like MTP that primarily pertains to women's bodies has not been enacted from women's rights perspective, but to exempt medical doctors from penalty vis-à-vis offences in the IPC regarding causing miscarriage and causing fetal death. Despite referring to women's rights to privacy, dignity and autonomy enshrined in Article 21 of the Constitution, the Bombay High Court failed to make the women's reproductive autonomy central to the interpretation of the MTP Act. If a pregnant woman seeks to terminate her pregnancy beyond 20 weeks, then her physical/mental health should be of main concern, even if there is no immediate risk to her life. To compel her to get involved in complex bureaucratic procedures of court approval, which includes examination by a medical board, is an affront to

her sexual and reproductive autonomy. It is hoped that this rigidity of interpretation is relaxed in the future, and a truly progressive regime on abortion is ushered in this country soon.

(The author is an Attorney. The views expressed are strictly personal)