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SC scan on abortion limit

New Delhi, Aug. 5: The Supreme Court has agreed to examine the constitutional validity of the law that bans abortions after 20 weeks of pregnancy unless there’s an immediate threat to the would-be mother’s life.

The Medical Termination of Pregnancy Act, 1971, allows abortions only till the 20th week of pregnancy for reasons such as severe foetal abnormalities or a grave risk to the pregnant woman’s health. (See chart)

Today, the bench of Justices Ranjan Gogoi and M.Y. Eqbal admitted a petition moved by an NGO, Human Rights Law Network, challenging the 20-week limit on the behalf of two women identified as Mrs X and Mrs Y.

Medical experts and women’s activists have for years been recommending that abortions be allowed beyond 20 weeks in case of a risk to the pregnant woman’s mental or physical health — even if it is not life-threatening — or severe foetal abnormalities. This is in line with the law in most countries where abortions are legal.

Doctors had told Mrs X at her first antenatal check-up that her foetus had severe abnormalities and would not survive more than a few hours after birth, the petition says.

Mrs X was 26 weeks pregnant and could therefore not legally obtain an abortion. She was forced to continue the pregnancy, visit the hospital regularly and participate in social events to celebrate the impending childbirth — all the while carrying a foetus she knew would not survive.

After three days of excruciating labour pains, Mrs X delivered a baby that died less than three hours later.

In her affidavit, Mrs X states: “The whole process was extremely painful. In normal circumstances a mother goes through all the discomfort just for the joy of giving birth. However, in my case, there was no joy as I was aware of the poor outcome (of the birth). All this could have been avoided if my pregnancy was terminated in time.”

As for Mrs Y, doctors had told her in the 19th week of her pregnancy that her foetus may be missing some brain tissue and that additional test results would not be available until after the 20th week.

Under the limits imposed by the abortion law, Mrs Y was forced to make the excruciating decision to terminate her pregnancy without full knowledge of her foetus’s medical condition and prognosis.

Senior counsel Colin Gonsalves today argued on the NGO’s behalf that the National Commission for Women, Federation of Obstetricians and Gynaecologists of India, women’s groups and the international community agreed that the 20-week stipulation was irrational, outdated and a violation of women’s rights to equality, health and life.

In April this year, the apex court had issued notices to the Centre and the Maharashtra government to respond to the petition, which challenges a Bombay High Court order upholding the current abortion restrictions. Today, the apex court admitted the petition.

According to the NGO, 2-3 per cent of the 26 million babies born in India every year have severe congenital or chromosomal abnormalities. New technology allows many of these abnormalities to be detected — but only after 20 weeks.

Time bars on abortion are usually based on the perceived link between the medical fact of a foetus’s viability — its ability to survive outside the uterus — and its legal right to be counted as an individual.

However, there’s no sharply defined point in a foetus’s life when it attains viability, and the period may vary from case to case.