A 15-year-old survivor of sexual assault by an acquaintance discovers that she is pregnant. When she complains of severe stomach ache, her parents come to know of the trauma that she has been undergoing. A decision is taken to terminate the pregnancy. The police are informed and an FIR is registered. However, the pregnancy has crossed the 20-week mark and as per the Medical Termination of Pregnancy Act, 1971, permission for the termination of the pregnancy can only be obtained from the high court. The girl is able to access legal assistance with the help of an organization working with survivors of violence and her case is filed immediately.
The court directs that the girl be examined by a medical board of experts set up in a government hospital and a report be placed before it. The minor and her parents report to the hospital and are made to wait for almost the entire day. But she is finally admitted to the hospital.
The medical board files a report but it is inconclusive. It refers to general contentions without giving a specific opinion on whether the termination of pregnancy at this stage is medically appropriate. The court directs it to place another opinion, specifically answering the above question. The girl continues to be in the hospital. The second opinion is also inconclusive. Based on legal precedents and the submissions made on behalf of the minor girl, the court permits the termination of pregnancy in the same hospital where she is admitted.
The procedure is carried out. By this time, she is 25 weeks into her pregnancy. The hospital refuses to discharge her till she takes responsibility for the disposal of the foetus even though the order is clear on this being the State’s responsibility. Only after intervention by the police and considerable pressure from the organization is the girl discharged. All this when the Covid-19 pandemic is in full swing and the city is seeing the highest number of cases every day. The hospital where the girl was examined and admitted is a Covid centre.
The law is one of criminalization as a rule and medical opinion as an exception. Causing miscarriage is an offence under the criminal law, which makes both the service provider and the pregnant woman an offender. The exception to this is the MTP Act, which was enacted in 1971 and has been amended once since. The law, while making access to abortion legal in specified circumstances, does not make it a right. It is entirely based on the opinion of one registered medical practitioner for up to 12 weeks and two from 12 to 20 weeks. After 20 weeks, the pregnancy can be terminated only if it is necessary to save the life of the woman. This was the limit set out in 1971 and continues to stand even though technological and medical advancements make these procedures safe much beyond the 20-week limit.
During the last four years, close to 400 cases of pregnant women seeking permission for the termination of pregnancy have been examined by various high courts. The move to amend the MTP Act has been in operation for more than a decade. The MTP amendment bill, 2020 was passed by the Lok Sabha in March and is now before the Rajya Sabha.
The law must acknowledge the right to privacy and the bodily autonomy of a pregnant person and must provide for abortion at will at least till the first trimester. The increase in gestational age for seeking termination must be uniform and not restricted to only a certain undefined category of women. The decision about this should rest with the pregnant person and her service provider and should not include any other third-party authorization like the medical board and/or courts. The law must consider the expansion of the provider base and not restrict the provision of this service to only allopathic doctors. However, the bill does not address these concerns.
The bill must ensure that it is in harmony with other existing laws and judicial pronouncements and should additionally recognize that a change in circumstances for a pregnant person is also a key factor in deciding whether to continue a pregnancy or not, including, but not limited to, aspects like desertion by the spouse/partner, change in financial circumstances and so on. It is imperative that the law on abortion keeps the pregnant person at its centre. It must not uphold the point of view of the service provider.