New Delhi: In March 2020, Swati (name changed) decided to end her pregnancy after her partner refused to marry her and ended the relationship. By this time, she was 24 weeks pregnant and abortion, under India’s current laws, would have been a criminal offence. She moved the Madhya Pradesh High Court pleading that the pregnancy was affecting her mental health. If she gave birth, the child would “suffer the mental torture” throughout its life, she said.
The court refused to give permission. The state government had argued that there were no grounds for an abortion since the pregnancy was the outcome of a voluntary act and she was “very much aware of the consequence”. The court agreed with the government, adding that while there was always the possibility that the pregnant woman and her partner could resume their relationship, termination would be absolute.
Swati was one of the 243 women who went to court to seek permission for termination of an unwanted pregnancy between May 1, 2019, and August 15, 2020, found a soon-to-be-released report by Pratigya Campaign, a collective working towards advancing women’s rights and their access to safe abortion care in India. Of the 243 cases, 138 involved adult women while 105 involved minors.
Each year, millions of women in India find themselves with an unintended or an unwanted pregnancy for various reasons. The Indian law allows termination of pregnancy on certain grounds and only up till 20 weeks of gestation. The Pratigya report tracked websites of various high courts and the Supreme Court of India, along with other legal websites to analyse instances where pregnant women went to court to seek permission for abortion.
The cases, despite all their different contexts, reveal one common finding: Even though the body of the pregnant person is the subject of all the medical and legal debates and deliberations, her own voice is rarely the one that moves the needle, an IndiaSpend analysis found. Instead, the decision is based on a group of technical experts, whose assessment may sometimes be impacted by their personal beliefs and perspectives, and who have no stake in the pregnancy beyond this decision. (See box)
More abortion cases in courts
There have been more cases seeking permission for termination in the past year as compared to previous years. Over a 35-month period between June 2016 and April 2019 there were 194 instances, compared to 243 between May 2019 and August 15, 2020, according to a previous version of the report that IndiaSpend reported on in October 2019.
One reason for the increased number of such cases could be the lack of clarity about when one needs to approach the court, said Anubha Rastogi, a Mumbai-based lawyer and author of the Pratigya report. “When I look at it from outside, this appears to be a case of strategic litigation--the intent probably was to take the cases to the Supreme Court and bring to their notice that there was this issue [of the 20-week limit to termination]. And while the Supreme Court heard several such cases it kept deciding each case on its own facts instead of laying down the law. Had the Supreme Court taken one stand there might have been lesser ambiguity about the need to go to court,” she explained.
The Bombay High Court, across its four benches, saw 53% of all the cases between May 2019 and August 2020, found the report. The previous report too had a similar finding with 45% of the 194 cases being heard by the Bombay High Court.
“One explanation for the higher numbers from the Bombay High Court,” said Rastogi, “could be a judgment of the Bombay High Court from last year  in which it was categorically stated that unless it is an extreme emergency that poses an immediate risk to the life of the pregnant woman, one has to take permission from the court for termination.”
As many as 112 of these cases came up after the imposition of the COVID-19 lockdown in March, a period when access to critical reproductive health services has been severely compromised. Media reports (see here, here, for example) have highlighted instances where pregnant women have had to go to court for permission simply because they were unable to access tests and other health services in time due to the lockdown restrictions.
In India, 1 in 3 pregnancies end in abortion
Nearly half of all pregnancies in India are unintended and one-third of all pregnancies end in an abortion, a study published in The Lancet in 2018 had found. There were about 15.6 million abortions in India in 2015, translating to an abortion rate of 47 abortions per 1,000 women in the age group of 15-49 years, according to the same study.
The Medical Termination of Pregnancy Act [MTP], 1971, allows termination of a pregnancy only up to 20 weeks of gestation on certain grounds, including failure of conception, pregnancy due to rape, or if there are serious foetal anomalies. When a pregnancy poses a risk to the life of the pregnant woman, there is no cut-off.
The 20-week limit is not based on any scientific consensus but was set based on the medical technologies available at the time of passing of the legislation, as IndiaSpend had previously reported. In its technical and policy guidelines on safe abortion, the World Health Organization does not suggest any threshold for abortions, and accounts for cases where a pregnancy may be terminated even later than 24 weeks.
Consequently, women who may want to terminate a pregnancy beyond 20 weeks have no option but to carry the pregnancy to term. In the last few years, however, several pregnant women have started seeking permission from the courts if they are carrying an unwanted pregnancy that has moved beyond the 20-week period.
Source: Pratigya Campaign
Note: Data as of August 15, 2020
According to the law, only the opinion of one medical practitioner (up to 12 weeks) and of two when the pregnancy is between 12 and 20 weeks-old is required for termination. However, in practice, several pregnant women end up in court even before the 20 weeks’ ceiling. At least 22% of all cases analysed in the report were filed before the 20-week cut-off while 14 cases had gone to court in the first trimester itself.
Many a times, this is because doctors and hospitals may refuse termination even within the 20-week period, especially in cases of minors/rape survivors. At other times, it could also be out of ignorance. “It’s a lack of knowledge… barring, perhaps, one judgment [of the Madras High Court] where guidelines were put down. Surprisingly, even judges and courts do not question petitioners who come before 20 weeks,” Rastogi added.
Source: Pratigya Campaign
Note: Data for May 1, 2019 to August 15, 2020. The gestation period for 18 cases was not mentioned.
Minors, survivors of sexual assault
Sexual assault or rape was the most common reason for which women went to court to seek permission for abortion. These formed nearly half (49%) of all the cases reviewed by the study. Of the 243 cases analysed, 43% (105 cases) involved a minor and all were cases where termination was sought on the grounds that the pregnancy was a result of rape.
Explaining why some rape victims end up crossing the 20-week limit for abortion, Suchitra Dalvie, a gynecologist and coordinator for the Asia Safe Abortion Partnership, said, “Minors may not realise that they are pregnant till the foetus starts moving inside them, which usually happens around 18 to 20 weeks in the pregnancy. It may also not be very obvious to an outsider till the pregnancy is around four months-old. Hence, minors often turn up late in case they want an abortion.”
“When it comes to rape survivors who are minors, very often one finds out that they had been raped only when one finds out that they are pregnant and not the other way around,” said Sneha Mukherjee, a lawyer at Human Rights Law Network, which provides legal services to those seeking permission for termination. “Also, when a minor is raped, in many cases the perpetrator is someone known to them who tries to ensure that they do not talk about it. So, one discovers the pregnancy (and rape) very late... which is why they have to go to court.”
Source: Pratigya Campaign
Note: Data for May 1, 2019 to August 15, 2020. The reason was not cited in one case.
The first case
The first time a person went to court seeking permission to terminate pregnancy beyond the 20-week limit was for a case of foetal abnormalities in 2008. A Mumbai couple petitioned the high court to abort a foetus with serious heart problems at 26 weeks. The Bombay High Court denied permission and the pregnant woman suffered a miscarriage just days later.
In 2020, while much has changed, foetal anomaly (48% of cases) remained a major reason for seeking termination of pregnancy. Foetal anomalies are often diagnosed late, explained Dalvie, adding, “While some anomalies in the foetus can be diagnosed early in the pregnancy, those involving the heart, neurology or the brain become apparent only after 20 weeks. You cannot physically really see them with an ultrasound before that. Which is why a lot of pregnancies are already beyond 20 weeks by the time the anomalies are diagnosed and hence they have to go to court.”
In addition to this medical constraint, Nikhil Datar, Mumbai-based gynaecologist and also the petitioner in the 2008 case mentioned above, identified another reason why foetal anomalies may get detected at 20 weeks or later. “There are roughly 260 million women pregnant at any point in time in the country and it is very difficult to ensure a sonography just before 20 weeks for all of them, especially in the public health sector. Therefore, many abnormalities which can be detected before 20 weeks just do not [get detected] due to poor access and low capacity of our health system,” he said.
“You are performing a sonography and then telling the pregnant woman that your baby in the womb has a serious deformity,” said Datar. “You do not have any great treatment for it. And you cannot terminate it as you have crossed 20 weeks. In short by providing diagnosis but no solution, are you not just increasing her troubles? When abortion is legal up to 20 weeks for the same cause that is foetal abnormality--what changes just in a week or so that it suddenly becomes an illegal, in fact, a criminal act?”
“On average, around 5-10% of the population will have some anomaly,” said Dalvie. “But many of them will be minor [such as a cleft lip, a sixth finger] and may be easily treatable. But, of this 10%, around 20% may be severe enough that they may not be compatible with life,” she said, explaining why some seek termination when foetal anomalies are detected. “It is not a huge number but for the person who has such a pregnancy, it can change their life completely.”
The courts allowed termination in 84% of the cases Pratigya documented. However, permission to terminate pregnancy was not given in 22 (9%) cases. These included instances where the termination could have posed a risk to the woman’s life, the case of Swati cited above, instances where the medical board felt there was no immediate danger to the life of the pregnant person and cases where minor pregnant girls told the court that the pregnancy was the result of consensual sex and they did not want to abort.
Source: Pratigya Campaign
Note: Data as of August 15, 2020
Studies from around the world have assessed the impact of carrying an unwanted pregnancy to term on women and children’s health and well-being. Women who were denied an abortion were more likely to experience serious complications from the end of pregnancy including pre-eclampsia and death, to not leave abusive partners, to experience anxiety and loss of self-esteem in the short term after being denied abortion, and to be less likely to have aspirational life plans for the coming year, found the Turnaway Study by the University of California in San Francisco, US, conducted between 2008 and 2015. The likelihood of postpartum depression was also greater in such cases. Denial of abortion for unwanted pregnancy also entailed an increased risk for negative psychosocial development and mental well-being in adulthood among the children thus born, found a longitudinal study from Prague, Czech Republic, spread over 35 years and published in 2006.
Amendments: Two steps forward, one step back
Amendments to the Medical Termination of Pregnancy Act are currently under way, and the proposed changes include making abortion up to 24 weeks legal. The amendment bill was introduced in Parliament in March 2020 and passed by the Lok Sabha. It is currently pending in the Rajya Sabha. Further, revealing the name and personal details of a person whose pregnancy has been terminated would become a punishable offence. The amendments would also pave the way for setting up permanent medical boards in every state.
While civil society organisations working on women’s reproductive rights have welcomed the amendments, they have also highlighted concerns and gaps. “It is still a doctor-centric law,” said Dalvie. “The woman should be the one deciding whether or not she wants to continue a pregnancy and the doctor should only be facilitating that. The doctor should not have the power to veto her decision because it is, after all, the woman’s body.”
Mukherjee agreed and also had doubts over setting up permanent medical boards: “So far, because these were ad hoc medical boards, courts usually set them up in a hospital close by for the pregnant person. Once these are permanent, they are most likely to come up in tertiary hospitals which are typically in big cities… how will these be accessible for all women? Besides setting up of medical boards under the Act is just a way of formalising third-party authorisation for abortion. This I believe is totally unacceptable.”
Abortion should be the woman’s choice, experts told IndiaSpend. “We should make the entire system woman-centric. The final decision should be the pregnant woman’s, nobody else’s,” said Datar. A rights-based approach where women are “treated in a dignified way and receive the services they deserve” was Dalvie’s suggestion. “A woman’s life should not be derailed because of an accidental pregnancy,” she said. “The important thing to note is that it is the judge and the doctor(s) who end up deciding for the woman. The doctors can give their opinion but the woman should decide whether it is a risk she is willing to take or not. Eventually, they are not going to be raising the child.”
“Along with policy shifts, the idea of pregnancy and motherhood and how they are emphasised also need to change,” said Mukherjee. “I feel a lot of issues with access also come from how motherhood is viewed in our society. That is something the courts cannot change.”
(Akshi Chawla is an independent researcher based in Delhi. She curates #WomenLead, a weekly newsletter about women in politics around the world.)
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