January 14, 2023
“The greatest destroyer of peace is abortion because if a mother can kill her own child, what is left for me to kill you and you to kill me? There is nothing between.” – Mother Teresa (now declared saint by the Papacy).
“However much I dislike the idea of abortion, you should not criminalize a woman who, in very difficult circumstances, makes that choice.” - Tony Blair, ex-British Prime Minister.
In India the laws and Supreme Court rulings on abortion seem to support abortion. But the ground realities seem different as highlighted in a recent article by Maitri Porech titled “Why the Supreme Court order on abortion is not helping women” in The Hindu (9/1/23) and excerpted here.
Despite the landmark judgment by the Supreme Court in September 2022 that unmarried women too can terminate their pregnancy until 24 weeks, the situation on the ground remains dismal as the MTP Act hasn’t been amended yet.
When Mumbai-based Shalini (name changed) walked into the State-run JJ Hospital in December 2022 seeking an abortion, she was turned away. Doctors at the hospital decided that her case was legally complicated. Her pregnancy had crossed 20 weeks, she was unmarried and the reason for her pregnancy was determined “as due to failure of contraception”. She then approached the Wadia Hospital, a charitable institution, which too turned her away.
Shalini wanted to discontinue her pregnancy as she was not ready to have the baby. When her pleas to two hospitals fell on deaf ears, Shalini had to finally move the Bombay High Court citing the Supreme Court judgment to get a favourable recourse.
Despite the fact that in September last year, a three-judge Bench of the Supreme Court passed a judgment that unmarried women too can terminate their pregnancy until 24 weeks, the situation on the ground remains dismal. Women are having to run from pillar to post to seek abortion.
Nikhil Datar, a senior gynaecologist and medical director at Cloudnine Hospital, says that despite the “SC having given an extremely progressive judgment on an individual case basis, the verdict leaves much to be desired”. Dr Datar’s activism since 2008 had helped pave the way to amend the rules of Medical Termination of Pregnancy (MTP) Act, framed in 1971. He has helped 320 women access abortion pro-bono by helping them challenge the MTP Act provisions in court.
The SC judgment is progressive. However, a Catch-22 situation arises because there is no clear indication in the SC judgment telling the government to amend Medical Termination of Pregnancy Act to include unmarried women under the extended 24-week ambit.
Dr Datar further explains, “It would have been better if the court had directed the government to change rules in accordance with the judgment. Unless rules in the Act are changed in black and white, women will find it difficult to seek abortion in health facilities.”
Rule 3(2)(b) of the MTP (Amendment) Rules, 2021 does not permit single women to abort after 20 weeks. Dr Datar says that the rule is discriminatory as it only allows “special categories” including survivors of sexual assault, minors, widows or divorcees, women with disabilities, a malformed foetus or women stuck in humanitarian emergencies, to access abortion post 20 weeks.
Amit Mishra, a practicing lawyer in Delhi, had moved the SC against this discrimination, in the case of an unmarried 25-year-old Manipuri woman which led to the landmark verdict last year. Mishra told The Hindu that even after the judgment, many doctors are apprehensive citing the fact that the Act has not been amended… “The government will have to step up to promote safe abortions irrespective of the fact that the woman is married or not. This can include putting up awareness boards outside hospitals citing the judgment,” he said.
Dr Datar has moved the Supreme Court filing another Special Leave Petition challenging the current MTP (Amendment) Rules, 2021. “There are multiple loopholes in the current rules which need to be addressed,” he says.
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