Extend the 24-week limit for abortion to all – Hindustan Times

Recently, a two-judge bench of the Delhi high court (HC) refused to allow a woman, who was in the 23rd week of her pregnancy, to abort her foetus. Reports of the hearing indicate that the judges stressed that the woman had been in a consensual, unmarried relationship, and was, therefore, barred from obtaining an abortion under the existing legal framework. Later that week, the HCs order was set aside by the Supreme Court (SC), and the woman allowed to terminate the pregnancy, subject to a medical board decision on whether the abortion would endanger her life.

However, the HC hearing and the judicial observations reveal certain deep-seated problems with the legal regime governing abortions in India. Under the Medical Termination of Pregnancy Act (MTPA), the default position is that a woman is allowed to get an abortion until the 20th week of her pregnancy, subject to the opinion of a medical practitioner that either the continuance of the pregnancy would cause a risk to the life or the physical or mental health of the woman, or if there is a substantial chance of foetal abnormality. The Act then extends this period to 24 weeks, for certain categories of women, which are to be specified in rules made by the government.

In October 2021, the government notified new rules under the Medical Termination of Pregnancy Act. These rules set out seven categories of women eligible for termination of pregnancy until 24 weeks, including survivors of sexual assault and minors. One of the categories specified is women who have had a change in marital status during the ongoing pregnancy (widowhood and divorce).

It is these rules that the judges appeared to be indicating towards, when they observed that the woman in question had been in a consensual, unmarried relationship. This raises the question, however, of why this distinction matters in the first place. Both the MTPA and MTP rules recognise that abortions should be allowed in principle until the 24th week of pregnancy, but only to specific categories of women. However, if we look at the categories, there seems to be no organising principle for why the permission to abort until the 24th week has been limited to only those cases.

Indeed, the category of change in marital status suggests that, in the view of the government, if the raising of a child creates a new set of burdens that the woman could not have foreseen at the beginning of her pregnancy, then she should be entitled to the extended 24-week period, instead of the 20-week period.

This assumption, however, ignores the fact that we live in a patriarchal society that continues to impose the primary and in most cases, exclusive the burden of childcare upon women, whether married or unmarried. The MTP Rules effectively make losing a husband (widowhood or divorce) the basis upon which a woman is entitled to the extended 24-week period, presumably because the additional burden involved justifies greater time to make the choice of whether to continue with a pregnancy or terminate it. If, however, that is the basis for the extension, then given our social realities, and the highly asymmetric burden of childcare that is placed on women that choice should be available to all women, and not just those who may be widowed or divorced during the period of pregnancy. In other words, constitutionally, the government may not grant a right to one class of people, while arbitrarily withholding it from another.

In cases of this kind, the courts are entitled to hold that executive-made rules go beyond the scope of the law, and are, therefore, to that extent, invalid. A second option is what the SC did when the case was carried in appeal: While leaving the larger question of validity open, the SC read the term marital status broadly, to include changes in any relationship, not just marriage. This is, of course, an important and urgent clarification, while the SC considers the larger question.

Needless to say, even that will not resolve the many problems with the MTPA, such as the extensive control that it grants to medical practitioners and medical boards in deciding whether the facts of particular cases warrant a woman being entitled to an abortion or not. In its present form, the MTPA does not adequately respect bodily autonomy and reproductive choice. However, extending the benefits of the 24-week period to all categories of women, and not just some, will be an important start towards that goal.

Gautam Bhatia is a Delhi-based advocate The views expressed are personal

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Extend the 24-week limit for abortion to all - Hindustan Times