Since the enactment of the Medical Termination of Pregnancy Act, 1971, women in India have been legally allowed to terminate unwanted pregnancies. The Act sets a threshold of 12 weeks, based on the opinion of one registered medical practitioner (RMP), and of 20 weeks, based on the opinion of two RMPs, for the medical termination of pregnancies to be lawful. An additional provision allows for termination of later stage pregnancies in case it is immediately necessary to save the life of a woman. However, despite 48 years of existence, its implementation, ambiguities in processes, interpretative differences coupled with shaky legislative foundation that has approached the issue from a medico-legal rather than a rights-based perspective have riddled the framework with hurdles.

The Act has not kept pace with advances in medical technology, limits contraceptive failure to married women and does not recognize social and economic implications of unwanted pregnancies and mental health of women. Along with its corresponding rules, the MTP Act limits the scope of the RMPs outside the community of allopathic doctors.

Due to legal impediments in receiving MTP, since 2016 there has been a sudden spurt in several petitions being filed before the supreme court and high courts for termination of pregnancies which were beyond 20 weeks in gestation.

A report by Pratigya Campaign for Gender Equality and Safe Abortion, titled ‘Assessing the Judiciary's Role in Access to Safe Abortion in India: An Analysis of Supreme Court and High Court Judgments in India from June 2016 to April 2019’, determines the patterns and inconsistencies in judicial enforcement of the abortion law in India. The study finds that over the last three years 194 writ petitions have been filed at the supreme court and high courts seeking permission to terminate their pregnancies. Out of them, 21 cases went to the apex court and 173 were filed at various high courts after the top court said such cases should be filed before the respective high courts.

All cases petitioned before the supreme court were above 20 weeks of gestation, five of which involved rape cases and 15 involved cases of foetal abnormalities. The apex court denied five cases and permitted 15 MTP requests. Out the five cases denied by the court three involved foetal abnormalities where each case had a foetus of 26-28 weeks gestation. The supreme court followed the opinion of the medical boards set up to examine the woman to decide the judgement in these cases.

Out of the 173 cases before the high courts in India, MTPs were permitted in 139 cases and denied in 29 cases; remaining were withdrawn. Among all high courts, the Bombay high court witnessed the largest share of petitions with 88 women appealing before it.

Forty women who petitioned the high courts were below 20 weeks of gestation. “This is an alarming development as it marks a departure from the provisions of the MTP Act which allows medical termination of pregnancies up to 20 weeks gestation. A notable number of cases under 20 weeks were a result of rape. Even though all of these cases were allowed by the court, the fact that they reached a court is a cause for worry and points towards the difficulties women face while accessing abortion even when they are well within the confines of law. The high court has not questioned the need for the petitioner to have approached the court and there have been no directions passed to ensure that this situation is not repeated,” says the report.

As many as 73 petitioners that knocked on high courts’ door sought permission for MTP citing potential foetal abnormalities. Out of these, the courts allowed 63 requests and turned down ten. As many as 62 cases involved foetuses with gestation beyond 20 weeks. Most foetal abnormalities are detectable only after 20 weeks gestation leaving women no choice but to reach out to the court for permission to abort.

“In cases of foetal abnormalities the courts gave little or no attention … to the reasonable and foreseeable future of the pregnant woman to be able to take care of a child born with special needs.” Taking note of inconsistencies in court judgments the findings say, “Since there are more high court cases than the supreme court, the scope of variance is a lot higher. This implies that the text of the MTP Act lends itself to a wide degree of interpretation leading to inconsistencies in how the judiciary responds to such cases. High courts also rely primarily on court-appointed medical boards to make a judgment. These boards often examine the women from scratch ignoring the opinion of the doctors consulted women beforehand thereby neglecting the role of the woman and her medical provider in decision-making. The court was being approached because of the legal impediment in receiving MTP, not because the women had not consulted doctors beforehand. By not relying on medical opinions placed before the court by the women, the supreme court has created the public opinion that the termination of any foetus over 20 weeks requires its permission. This in turn has resulted in several petitions being filed before the supreme court and high courts which could otherwise have been legally terminated. The court did not settle the law and instead only relied on medical opinion by a board that it had constituted.”

The report recommends that the ministry of health and family welfare (MoHFW) issue a public statement clarifying  that a pregnant woman is not required to approach the court for permission while seeking MTP if the foetus is under 20 weeks of gestation, initiate a consultative process that seeks to collate recommendations on  harmonizing  the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, the Protection of Children from Sexual Offences Act, 2012, the Drugs and Cosmetics Act, 1940 and the MTP Act for women to seek bonafide MTP, laying  down of a  comprehensive jurisprudence by the supreme court that clarifies certain definitions and processes to ensure that justice delivery is consistent across the country, passing of the MTP Amendment Bill, 2014 with all proposed  amendments in the parliament and  provision to allow abortion in all rape cases regardless of gestation due to the associated mental and physical trauma. Pratigya Campaign has urged the top court to lay down comprehensive jurisprudence that clarifies the Act to ensure justice delivery is consistent across states and permit all cases under 20 weeks.

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