SC remarks welcome, but Indian abortion law far from ideal

The Hon’ble Supreme Court of India heard two different cases on Saturday. One was a heart-wrenching case of a 10-year-old pregnant (30 weeks) rape victim from Chandigarh who was denied termination of pregnancy. On the other hand, a 21-year-old pregnant (24 weeks) woman from Mumbai, who had a serious foetal brain abnormality, was allowed to terminate. It has been a good and bad day for the abortion rights movement in the country.

However, the silver lining seems to be the comment by the SC that the government should appoint a panel of doctors in every state to look into these matters. I think this is the first ever comment by the apex court on this very important policy issue. This seems to be the need of the hour, as till now, individual cases were judged on their merits and on the basis of medical committee reports. Ultimately, why should women run from pillar to post and take the hardships of petitioning the apex court and get their private medical problem discussed and dissected in the public domain? That is being completely unfair to them.  

So the question is: Can the constitution of medical board solve the problem when the law of the land is not yet amended? When the provision of the archaic MTP Act clearly disallows termination of pregnancy beyond 20 weeks (exception...immediate risk to the life of the woman), can a doctor or group of doctors allow the termination? Is a doctor or for that matter any government servant or citizen above the law? The obvious answer is ‘no’.

Way back in 2008, I had filed a special leave petition (Dr Nikhil Datar Vs Government of India) which is still pending in the Supreme Court. In my petition, I had suggested a mechanism that would take into account the “best interest” of the woman seeking termination. The petition had demanded that the termination deadline be extended to 24 weeks in general. Beyond 24 weeks, it should still be allowed for specific cases like rape survivors or when the foetus has a serious abnormality. This is perfectly in line with international medical as well as ethical norms.

Of course, this is possible only if the law is amended or SC issues clear guidelines to the effect. In the past, the Supreme Court has issued similar guidelines for “end of life care or euthanasia” in the public interest litigation titled Aruna Shanbhag Vs GOI.

The committees of doctors shall derive the power of decision making only from these guidelines or the amendment. The government should identify specific hospitals and specific doctors based on qualification and experience. These doctors should undergo training on legal and ethical aspects related to abortion. The team of doctors should be chaired by an obstetrician. Other specialists such as paediatricians, psychologists etc. should be included.

The committee can objectively confirm the presence of a foetal abnormality. (It means that there will be a mechanism to ensure that there is no misuse of the law). It should ensure that the woman has understood the prognosis of the condition correctly, and should help her arrive at the conclusion. However, the final decision on whether to terminate or not must rest with the woman and not the doctors. I still remember an incident from a few years back when a woman in a similar state was offered all the help by the government, and she shot back: “Is the government going to come to my house at night when my seriously ailing child will be crying in pain and agony?” It is true that with the birth of a child, a strong mother is born. However, society and the law should support her in her decisions and not impose arbitrary, outdated, illogical restrictions on her reproductive rights.

The author is a gynaecologist and health rights activist fighting for women’s right to abortion