Bombay HC Rejects Abortion Plea: A Look at India’s Legal Realities
On 11 September, the Bombay High Court refused permission to a 17-year-old rape survivor to medically terminate her 20-week pregnancy. The girl's plea was turned down after noting that a panel of medical experts had ruled it out, owing to medical risks involved due to the late stage of the pregnancy. The petitioner had approached the court last week seeking that she be permitted to medically terminate the pregnancy, despite the medical panel's recommendation.
She had argued that forcing her to continue with the pregnancy would be adverse to her mental health and well-being, and that the same would cause her much trauma. As per her plea, the petitioner, a college student, was sexually assaulted between March and May this year.
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In July 2008, Niketa and Haresh Mehta had also approached the Bombay High Court to seek termination of Niketa’s 24-week pregnancy. The couple had approached the Court because medical tests revealed that the foetus had complete congenital heart blockage. Thirteen days later, the Court rejected the couple’s plea to abort, in adherence with the Maternal Termination of Pregnancy (MTP) Act, 1971.
The court bench concluded that the petitioners, the Mehtas and their gynaecologist Dr Nikhil Datar, had failed to make a convincing case of how the medical complications held a severe threat of mental and physical disabilities for the baby.
Niketa miscarried in the 27th week. The legal battle, a seemingly futile exercise, only fanned the fire around the narrative of abortion laws in India and brought the discussion to the forefront.
Indian Abortion Laws: Progressive in Some Ways, Obsolete in Others
Much like the Rohtak case in 2017 when a 10-year-old was raped by her stepfather, a 10-year-old in Paraguay faced a similar fate in 2015 when she was raped and impregnated by her stepfather. Following this, she sought legal permission for an abortion. While the girl in Rohtak was allowed to go ahead with the abortion, the strict anti-abortion laws of Paraguay forced the child to have the baby. Cases like Rohtak show that in some ways India indeed is ahead of several of its international counterparts where abortion is either not allowed or is permissible only in very rare circumstances.
When asked what is that one thing about the legality of abortions in India people should be made aware of, Human Rights Lawyer, Anubha Rastogi says:
The same applies for girls under 18 years of age (with their guardians’ consent) and for those impregnated by rape. Additionally, a woman does not need the consent of her husband and can legally terminate her pregnancy within 20 weeks.
If, however, the mother or the baby’s life is seen threatened in any way by the pregnancy, legal exceptions can be made to this 20-week-ceiling, as evidenced by the Rohtak case.
Rastogi adds on the topic:
In stark contrast to the Rohtak case is another 10-year-old from Chandigarh whose abortion plea was denied by the country’s apex court earlier this year. She was nearly 30 weeks pregnant but had first reached out to local courts when she was 26 weeks along.
To this, Dr Rishma Pai, Consultant Gynaecologist Jaslok, Lilavati and Hinduja hospital, replies with:
Other than obvious problems with 20-week ceiling, as evidenced by the Chandigarh case, it is obsolete in times of technology which allows a much closer look at the development of the foetus than was possible over four decades ago.
In case of anomalies with the foetus, they become detectable only after the 20th week. If a woman in India aborts her baby after 20 weeks, she is committing an offense punishable by up to 10 years of imprisonment.
Abortion Carried Out Under Proper, Medical Supervision Will Not Affect Fertility
To begin with, no, an abortion won’t affect your future fertility. Yes, it’s a pervasive myth, but one that was busted long ago. If an abortion is carried out under trained professionals, it is a safe procedure.
Depending on the duration of the pregnancy, there are two broad ways of getting an abortion – while one requires only the consumption of pills, the other is a more invasive procedure.
On the topic of long-term side effects on abortion on your body, Dr Pai says:
While medically an abortion is a perfectly normal procedure, what seems to be a tougher battle for India currently is getting rid of the stigma attached to it, especially in cases of pregnancies outside wedlock. While this may be a massive hurdle to overcome at the moment, perhaps all is not lost just yet as the narrative around abortion begins and continues to thrive with every passing day.
Dr Pai also has an optimistic picture to offer on the topic of societal hurdles:
Doctors understand that an abortion is an emotionally and psychologically traumatic experience for the person undergoing it. They don’t tend to get moralistic or judgmental. It is, after all, part of our job and we have been made aware of it ever since we entered medical school. In our careers, we deal with hundreds of such cases.
(With inputs from PTI.)