On February 28, 2017, the Supreme Court refused to allow a woman to abort her 26-week-old foetus that would be born with Down syndrome, a congenital disorder that postpones the onset of developmental and intellectual features. Admitting that the child may suffer from physical and mental abnormalities, the bench said that their hands are tied by law.

In May 2017, the apex court denied a plea to abort another 26-week-old foetus, made by a 35-year-old HIV-positive woman who had been sexually assaulted. The court cited a report prepared by a doctor at the All India Institute of Medical Sciences (AIIMS). The report claimed that an abortion at such a stage could endanger the mother’s life. The court noted that the cumbersome legal battle had resulted in delaying the relief that the 35-year-old woman had sought.

The law in question is the Medical Termination of Pregnancy (MTP) Act, 1971, which is awaiting amendment.

Abortion leads to legal, moral and ethical dilemmas. Multifarious issues crop up relating to genetics, medicine, sexuality, jurisprudence, reproductive rights, as well as the foetus’s right to life. The battle is between pro-life supporters – who condemn abortions considering the death of an unborn child a social death – and pro-choice supporters, who believe that women should be in total control of her reproductive life and nobody, not even the state, has the right to tell her what to do.

The present law

The legality argument is impractical because the law is clear. In India, under the MTP Act, abortion is a qualified right. An abortion can’t be performed based solely on a woman’s request. And it can only be performed by a registered medical practitioner before 12 weeks of pregnancy. In case the woman had been pregnant for more than 12 weeks – but for less than 20 weeks – the opinions of two medical practitioners are required.

However, the underlying condition remains: an abortion is permitted only if continuing the pregnancy poses a ‘substantial risk’ to the woman’s life or to her ‘physical or mental health’. Alternatively, if the child that is yet to be born faces similar substantial risk – in that it would suffer from ‘physical or mental abnormalities’ or may be ‘seriously handicapped’ – an abortion may be allowed.

In case of pregnancies caused by rape, or a failure of birth control (for married women), the risk to their mental health is admissible grounds for abortion. The premise of keeping the window for abortion open only until 20 weeks is that, generally, abnormalities can be detected by that time. However, some rare congenital diseases can be detected only after 20 weeks; this can potentially put both the lives of the mother and the child at risk.

Considering the lack of governmental support for persons with disabilities, the argument for the foetus’s right to life needs to be rethought. Complications can drastically affect the child’s lifespan and quality of life. The state’s control should be minimal, as it is the woman and her family who will be responsible for taking care of the child. Moreover, the socio-economic conditions prevalent in India do not always promise a ‘dignified life’ for the child. Therefore, without legal recourse, pregnant women who find themselves in difficult situations may opt for illegal abortions. This can lead to infections and even death.

The MTP (Amendment) Bill, 2014

The MTP (Amendment) Bill of 2014 proposes to replace ‘registered medical practitioners’ with ‘registered healthcare providers’. More importantly, it aims to extend the permissible period for abortion from 20 weeks to 24 weeks if the healthcare provider believes the pregnancy involves a substantial risk to the mother or the child. If substantial foetal abnormalities are detected, the amendment also allows an exception on the time limit for pregnancies to be terminated.

However, these amendments are being passed back and forth without any effective action, forcing pregnant women seeking abortion to run to courts. The amendment still also needs cabinet approval, after which the Bill will be tabled in parliament.

The judiciary has at times been progressive, pronouncing judgments that support reproductive rights. But at times, the courts have succumbed to the old 1971 law as well. The Supreme Court has held that a crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. In a suo motu case, the Bombay high court – while dealing with the medical termination of pregnancy of two under-trial prisoners in Thane jail – clearly stated that it is applicable to all women irrespective of their marital status or whether she was a working woman, a homemaker or a prisoner.

Even the term ‘mental injury’ has been given wider interpretation by the courts. On the right to abortion, the US Supreme Court has held that it is the woman who suffers and thus she has the right to make the decisions. Its Indian counterpart allowed an alleged rape victim to abort a 24-week old foetus with severe abnormalities in January 2017, as the medical board thought that the pregnancy could put her life in danger. Decisions made by courts therefore have not always been on an even footing, thereby necessitating changes to the existing law.

The pro-liberalisation movement

It is high time that restrictive abortion laws are liberalised paralleling societal changes. Irrespective of the marital status of women, access to safe abortion services and quality post-abortion care, including counselling, need to be guaranteed. A strong recognition of women’s right to freely exercise their reproductive and sexual rights, including the right to abortion, should be there. The MTP (Amendment) Bill 2014 that, along with other amendments, talks of removing the word ‘married’ and substituting ‘husband’ with ‘partner’, should be pulled up from under the pile and enforced at the earliest. A progressive law cannot be suppressed with the excuse that sex-selection abortions will happen more often. Preventing the misuse of law cannot happen with the suppression of another’s right.

Saumya Rai is assistant professor at School of Law, Tata Institute of Social Sciences, Mumbai, and Sajid Sheikh is teacher associate at Maharashtra National Law University Mumbai