New Delhi: On January 23, the Delhi High Court recalled its order granting permission for abortion to a 26-year-old woman. Her husband had died two months ago. She was about 30 weeks pregnant when she approached the court. The earlier order was based on the fact that she had suicide ideation due to her bereavement, but the court turned back on its previous order after doctors at the All India Institute of Medical Sciences (AIIMS) raised objections to the late-term abortion saying that the foetus was viable and it could be born alive after the procedure.

This case is similar to the one decided in October 2023 by a three-judge bench of the Supreme Court, which involved a married woman with postpartum psychosis after a recent delivery. There too, AIIMS doctors had sent clarifications that it was a late-term pregnancy as defined by the Medical Termination of Pregnancy Act, 2021 (MTP Act). The Supreme Court not only rejected the abortion plea at the time, but also told the woman to deliver the baby at AIIMS and give it up for adoption if the couple wishes to do so.

If one strictly goes by the book, the MTP Act allows for abortion after 24 weeks only if there is a threat to the woman’s life or if there is a foetal anomaly. But several high courts and the Supreme Court in the past have used their discretionary powers and have given orders to terminate late-term pregnancies.

The 20-week limit was set by the 1970 Act when methods for medical termination were primitive and dangerous, Colin Gonsalves, senior advocate at the Supreme Court and founder of the Human Rights Law Network, said. Now, abortions can be safely performed up to full term, and therefore the limit is obsolete, he told us in an interview. The decision to abort must be of the woman and the woman alone, and she should be allowed to choose unless there is danger to her life, he added. We spoke to Gonsalves on the recent cases, the MTP Act and the issue around accessing late-term abortions.

Edited excerpts:

What do these judgements indicate as a trend? In this case too, the well-being of the foetus has been taken into account while passing the order.

I think it is the saddest day in our lives when we see the kind of judgements on abortion rights coming from the Supreme Court, particularly when we look at the history over the last five years--at least 10 judgements of the Supreme Court and at least 20-25 judgements of various high courts in terms of abortions in late-term pregnancy matters. The law makes it very difficult after 24 weeks to legally conduct an abortion, but our high courts and our Supreme Court showed such courage and foresight that they delivered judgement after judgement ignoring the statutory provision and the very pernicious, if you like, statutory limitation of 24 weeks etc.

Now, why was this limit of 24 weeks placed? Simple. It was placed because in 1970, when the law was made, the methods for doing abortions were very primitive--scraping, vacuuming and so on. And if you did it after 20-24 weeks, there was a chance that the life of the mother would be threatened because the procedure was very primitive and dangerous. This was decades ago, and the law has remained constant for all these decades.

Today, these cases are coming to court at a time where the abortions are done via an injection which stimulates labour, and by stimulating labour the foetus is expelled. It is an absolutely safe procedure right up to full term. Therefore the ceiling has become obsolete. The central question is the absolute right of the mother over her own body--privacy, dignity and that she and she alone will decide whether she wants to make a termination of pregnancy or not.

But why has the court not set aside the ceiling? Let me tell you, ‘Nikhil Datar’, the leading case, which calls for the Medical Termination of Pregnancy Act, 1970 to be set aside as unconstitutional completely, is pending in the court for--hold your breath--15 years. In 15 years, the court has not found the time to take up an issue vitally related to the rights of women.

The Supreme Court waxes eloquent, in case after case and in the media, on the rights of women. [But on] this most important petition to set aside what history has virtually rendered obsolete--this time limit of 20-24 weeks--the Supreme Court has not found the time. Arbitration, insolvency, property matters, and all these kinds of cases are given top priority but human rights for the poor and the destitute and the illiterate and the hungry will not come up. I'm sorry to say the Supreme Court has an inverted notion of what is important and what is not. This has become a rich man's court, by and large. Of course, there'll be cases relating to the poor and criminal cases [relating to the poor], but it has become a commercial court, a rich man's court. And it is certainly not the poor man's court that it was once upon a time.

The Union government is also vociferously advocating that the rights of women are limited after 24 weeks.

The very Supreme Court that gave this awful judgement recently, gave the most brilliant judgement in a case relating to abortion rights. And in that judgement, you will find the woman’s right is her right. It's a decision protected by privacy and dignity. Meaning thereby, I don't think any court has the right to question the pregnant woman. “Why do you want it? Is the foetus going to die if it is born? What is the abnormality? How severe is it? Are you psychotic? Show me your certificate. Oh, the certificate doesn't seem to be correct. Shall I send it back? Shall I ask them to review?”

Awful. What is this way of cross examining a woman's decision to have the termination of her pregnancy done? She may do it for any reason. Here at least you had a psychotic woman who desperately wanted to do the termination. Women who want to terminate their pregnancies do not take the decision lightly at all. They are deeply traumatised. They are so pained internally. I don't think any man would understand, or any judge would understand--unless you have a woman judge, and in this case we had a woman judge looking at the case. But you said ‘dignity, privacy’, which means you will not question the right of the woman to do it. And now she is subjected to all kinds of [questioning].

And on the state's side you have something very deranged. They say the state will look after the baby. This government? That cannot look after millions of children lying on the streets of Delhi and other cities, dying in the cold? The Prime Minister recently declared that 650 million families are getting free food from the government. It means that there are 650 million people living below the poverty line. Why would you give free food if they were above the poverty line? And all these children. The women who are pregnant, delivering on the streets. What a shameful deceit and lie to say to a pregnant woman, “Madam, we’ll look after your children.” And thereby create a precedent that a woman will be cross examined. She'll be cajoled, she'll be pressurised.

Could you explain the process involved in the case in the Supreme Court in October?

In cases of abortion after 24 weeks, there's a chance that the foetus will be ejected alive. And that’s an awkward situation, that’s a terrible situation. But it is not unusual at all, all across the world. We follow the UK system. In the UK for example, like India, after 24 weeks, if you’re getting just one injection to stimulate labour and evict the foetus, there's a second injection given--an injection into the foetal heart which stills the foetal heart. Normal.

Before she was counselled, the woman was told in court, “Listen there is going to be an injection into the foetal heart.” And she recoiled in fear because she had not been counselled: What is the injection, is it given routinely? Is it safe? Will the foetus suffer pain? And she said, ‘No, I don’t want it.’ So the court correctly remarked, ‘If she doesn’t want it, we can’t force her. She has to go through with the pregnancy.’

But the very next day, she was counselled and she was explained and she gave it to the court in writing, ‘I agree to the foetal injection, I now understand and I agree.’ And then her counsel mentioned it in court. And the court said “You cannot flip-flop.” Now, I don't understand why can't you flip-flop? ‘Flip-flop’ means I had an opinion, I was counselled, [and] I changed my mind. If you call that ‘flip-flop’--not a nice term to use for a pregnant woman going through trauma. But alright. So she's gone through the pregnancy against her will and God knows what will happen. The attention of the society [is fleeting]. You know how India is... fleeting interest, fleeting concern, fleeting compassion for the child.

I want to go back to my question about the indication of the right to life of the foetus, or the concern for the foetus. I want to understand, when you introduce these terms in court, what does that mean?

I was so shocked to hear the court say “the right of the unborn child”. It was an oral statement; came in the papers. And I suppose all these statements, though not found in the order, would have influenced the High Court to take back its order.

How is it that international law preceded? International law, the UN Conventions say, the proceedings under those conventions say “a foetus is not a person.” The Constitution will give human rights to a person. The foetus is a part of the mother, the pregnant woman, the foetus is not a person till it separates from the body. Therefore, international law is going rapidly in this direction. The foetus has no human rights, no fundamental rights, apart from the rights of the mother.

And as far as the rights of the mother with the foetus inside her, is that the mother’s determination, the mother’s decision is unquestionable. Only one caveat, one exception- that the mother must not harm her life in the process. That's the only caveat. This Act must go, be replaced by a one-line Act: The mother’s right and decision is absolute and unquestionable, save for one exception--a doctor must certify that by doing the abortion, there will be no effect on her life. She will not die. And it is safe to do the abortion. Beyond that there is no restraint to be placed on the woman. One-line Medical Termination of Pregnancy Act, 2024.

But our government doesn't have the vision like it doesn't have the vision in anything. Any social aspect. But our courts should have the vision. As they have shown for the last five years, in the face of this archaic Act. At least 25-30 judgments Supreme Court and High Courts, brilliant judgements. All those judges must be so disappointed and fed up with what has happened in this case. That after the SC and HC saying so many wonderful things about the rights of the mother, today no rights exist; it's all in ashes.

So, the WHO, the proceedings under the Universal Declaration of Human Rights and the proceedings under the Convention for the Rights of the Child and numerous other conventions, all the proceedings the UN bodies have concluded that when they speak of a child they don't speak of the foetus. Child means separate from the mothers. And therefore all these conventions only cover the child, not the foetus. And therefore the conventions of international law cannot be used to justify this proclamation that there are rights for the unborn child.

Now let’s look at the implication of all of this. The moment you say “rights of the unborn child”, it means no abortion. It means that all abortions in India must come to an end. Because conception takes place and the heartbeat may be felt a little later, that life starts earlier?

What is the conclusion? What is the end result? No abortions are possible in India, unless you show [the foetus] is severely malformed, etc. No right of the woman to abort the foetus. What a horrifying and tragic consequence of such judgments of our court!

And why do women pass the 20 weeks? Because even today, in terms of heart defects and other defects, technology captures those defects quite late. So you go past the 24 weeks and then you’ll be told, “No, you can’t have an abortion because you’re not in any distress that you will die if you don’t have an abortion.” That is how the law has worked against her. And that is why this law needs complete surgery and removal. It's the one big hurdle in the way of women exercising control over their bodies. And I'm shocked that our Supreme Court should do this. I'm totally shocked. I never expected after seeing our success rate in the courts. Every judge, every Chief Justice, one by one upheld the rights of the woman. ‘You want to do an MTP, go ahead. You want to do an MTP, go ahead.’ What can I say? I've lost faith. I've lost faith substantially in our judiciary. It is one more step falling down, the Indian judiciary falling down.

In both these orders, it's the doctors who raised objections/clarifications. The objection is to use the method that you mentioned--what is called pre-abortion foetal demise, which involves injecting potassium chloride to stop the foetal heart. The government counsel in this case said that foeticide is ‘neither justified nor ethical’. So what can judges do if doctors are clearly indicating--though they're not saying--that they don't want to do abortion after 24 weeks? In the Delhi High Court order, the counsel had raised the 2017 guidelines, but they said that it's only for foetal abnormalities and in case of rape.

In case of late-term pregnancy, this is a routine procedure. Let me tell you, this woman, had she left the court and gone straight for an abortion in Delhi, she would have got the abortion done. Doctors are doing this abortion everywhere in this country. In many parts of the world they do it. It’s a routine thing, in the UK, routine. You go, fill up the forms, you give your gynaecologist’s certificate, it’s done. It’s a 2017 guideline. God knows in how many cases because in India who cares to document all of this? Thank God, they don’t document because they would interfere with every woman. It is done, it is safe and it is technically and scientifically allowable, in jurisdiction after jurisdiction in the world.

Now, I think the High Courts will do a turn. Doctors never complained. In all those 60-70 cases that I documented, doctors cooperated because they saw the judges were helpful. They look at the judge to see, is the judge helpful to the woman? Or is the judge criticising the woman? Coming in the way? The moment they saw [the judge is] helpful, for five years, every hospital including AIIMS, hospitals in Delhi, hospitals right across the [country] came and said it can be done. And the court said, ‘Alright, if you're saying it can be done, do it.’ And now because of this one case, which caught the attention, doctors have become scared again. ‘Oh the court is saying “rights of the unborn child”. Will I be arrested for murder, manslaughter? What will happen to me?’ So the fault lies with the Supreme Court, no doubt. The SC shows the way up, the SC shows the way down. Now we are caught, because it’s shown the way down.

Now look at the data on deaths--women dying during abortions. Shocking, lakhs of women. That data is also well documented by some UN agency. So everybody who is told no by the court, and the government, they will all go into some slum area, some alley, some shady place where the doctor will do some shady operation; women will die. Can you imagine what a disservice has been done to women in this country?

[Note: The United Nations Population Fund’s State of Population in 2022 released a report which said that unsafe abortion remains the third leading cause of maternal mortality in India, and close to eight women die from causes related to unsafe abortion everyday. In 2007-11, 67% abortions were classified as unsafe. Young women aged 15-19 were at the highest risk of dying from an abortion related complication.]

And have you seen the data about the unmet needs of contraception? How many million families do not have the money and do not have the access to buy contraception. So you go ahead, you have a child. You'd say, ‘Oh, she's poor, therefore she's having a child. All these poor people are having children.’ Look at the data on the unmet needs--women want to have contraception and cannot get it. Either they can't pay, or it's not available in their remote areas or whatever. What an injustice. I can't imagine a bigger injustice than this, a bigger human rights injustice than this.

[Note: According to the National Family Health Survey 2019-21, 9.4% women aged 15-49 years across India had unmet contraception needs. As per a major Guttmacher study that was published in Lancet in 2018, abortions accounted for one-third of all pregnancies, and nearly half of the pregnancies were unintended. And 78% of abortions are done outside healthcare facilities, most of which were medical abortions using abortion pills. Read more here.]

Let's assume that a doctor is unwilling to do an abortion after 24 weeks for some reason or another. What is the legal remedy in such cases?

Very simple. This law exists. Case exists in the Supreme Court for 15 years. Court has to take it up and set aside the law completely. The ceiling, set it aside, all these questions and answers, all these restrictions on women’s rights. Declare women's rights as the Supreme Court has correctly done in a magnificent judgement in 2022: A woman’s right to bodily autonomy, secrecy, privacy, dignity; we can’t dictate to the woman how her mind should be made up; she should be allowed to take these decisions herself. Set it aside. How long does it take to set aside an obnoxious Act like this?

Doctors are only scared because that is the law. There is a law, who knows, somebody may use it against me. Once the law is set aside and once the Supreme Court reasserts that a woman has a right to her own body, if she wants to terminate her pregnancy, she must talk to a gynaecologist only. Gynaecologist would check her up and say, ‘Okay you can do it.’ Give her a certificate saying. ‘I checked up the woman, she is going for an abortion today, I hereby certify that as of today, it would be safe for her to have the abortion and it may be permitted.’ That’s all. Take the certificate, go to your doctor, do the abortion. It’s legal. Once it’s legal, why should anyone be afraid? Doctors are justified if they are afraid because of what has happened in the Supreme Court.

In both the orders, they have said that the women should deliver the babies and they have given them the option of giving them up for adoption. The fundamental question that many people will be asking is, can we force a woman to deliver the baby against her will and give the baby up for adoption?

I don’t want to proceed with my pregnancy. Why should a judge or a doctor tell me I have to? Why?” Earlier there was a reason and the reason was: If you don’t listen to me, you will die. But why should you force them today? It is judges and doctors are playing God, isn’t it?

You have no right to tell a woman to go through a pregnancy and hand over your child. Thank you for your charity. I don’t believe in your charity at all. When you come to ordinary people you have no charity and now you make a show that you are so charitable. Thank you for your charity but no thanks, I don’t want to go ahead with my pregnancy. That’s the right of the woman.

In both these cases, mental health problems came to the fore and Section 5 allows the doctor to terminate a pregnancy if it is necessary to save the life of a pregnant woman. Do you think these cases change the way the law is looking at mental health?

Of course! What does ‘Save the life of the mother’ mean? That you prevent the heart which is beating from stopping? That’s a very crude way of looking at life. Life includes life in a wholesome way, life includes mental health, mental peace, lack of trauma. So if you are forced to go through [the pregnancy without] an abortion and you go into deep depression, here look at this case. Psychosis. You go into deep trauma, deep distress. Save the life means save the woman from that distress. The Supreme Court has said life is not an animal existence. Life is wholesome life, where you can enjoy your life. ‘I already have two children. I don't want a third, I am psychotic and depressed. I am suicidal.’ Save the woman from that existence and let her go through with the abortion.

What is the state interest in this that you should prohibit this? I can understand if the state has a compelling interest to force women to have children. What is the state interest? What is the court’s interest? What’s anybody’s business to interfere with the woman? What are you trying to show the world? ‘Oh you’re so humanistic. Oh we believe in the rights of the unborn child.’

You don’t believe in the rights of human beings in India--living on the streets, living in the slums, living in abject poverty, children falling out of school. Hospitals in terrible shape, not a bed to treat your people. Not having food. This central government has recently cancelled 4 crore ration cards and their PDS grain is stopped and we have gone to the Supreme Court to get those cards restored. This government is talking about the rights of the unborn child when you can’t even look after those who are born?

This is India. It is time our judges, our doctors, our upper middle classes and our rich people understand that this is India. And the poor will never forgive the rich and the famous and the powerful for how they are treated. I don’t know how many lifetimes it will take before this happens. But it’s not forgivable, the kind of crime we have committed against women, pregnant women and their foetuses and their children is not forgivable.

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