India: Late-term abortion ruling highlights mothers' rights

The High Court of Delhi last week permitted an Indian woman, who was 33 weeks pregnant to undergo a medical termination after doctors found abnormalities in the fetus.

"The ultimate decision in such cases ought to recognize the choice of the mother," said Justice Prathiba M.Singh on December 6.

What are India's laws on abortion?

The decision has been considered controversial, considering that abortion is usually permitted only up to the 24th week of pregnancy in India.

The Medical Termination of Pregnancy (MTP) Act came into force in 1971 to reduce India's rising maternal mortality rate, which was caused by unsafe abortions. The act has since undergone various amendments.

In 2021, it was extended to include the right to legal abortion for unmarried women (in addition to married women) with up to 24 weeks of pregnancy resulting from a consensual relationship. This was considered a historic move.

Typically, women in India had been able to seek abortions up to 20 weeks into pregnancy.

The amendment increased this period to 24 weeks for certain categories, including minors, survivors of rape, women whose marital status has changed, women who suffer from mental illness or physical disability, women in a humanitarian crisis, and for such cases when the fetus has anomalies that are not considered compatible with life.

Additionally, in September of this year the Supreme Court of India ruled that the term "woman" was not limited to cis-women, but applicable to all persons who may require access to safe abortions.

The court also ordered that the definition of "rape" be expanded to include marital rape in the MTP Act.

Court overrules medical board

In cases when a woman is more than 20 weeks pregnant, courts usually rely on the analysis and recommendation of a medical board to decide whether an abortion can be granted.

But critics say this undermines the bodily autonomy of a woman.

In November, 26-year-old Kavya (name changed to protect identity) and her husband filed a petition seeking permission to terminate her pregnancy 33 weeks in.

"This was one of the toughest decisions of their life and it has taken a toll on them," said Anwesh Madhukar, the lawyer representing the couple.

Four ultrasound scans had revealed that the fetus showed evidence of cerebral abnormality.

But the medical board told the court that Kavya's fetus was "compatible with life" and could be "managed surgically following delivery."

The board also noted that the degree of potential disability in the baby post-delivery could not be "predicted" and recommended that Kavya be denied an abortion.

But in the end the court took into consideration Kavya's mental health and personal choice and decided to permit the termination of her pregnancy.

While delivering the ruling, Justice Pratibha also suggested that instead of permitting or denying an abortion, medical boards should stick to only providing a qualitative analysis.

'Landmark ruling'

Lawyer Anwesh Madhukar called the court's decision a "landmark ruling."

"If a court always only relies on the opinion of the medical board, the woman's autonomy gets completely lost. This was not an easy decision for Kavya or her husband to take," Madhukar said, adding: "I hope this encourages more women to turn to courts if they need to."

Padma Deosthali, program director at the Creating Resources for Empowerment in Action – a gender rights non-profit – said activists fighting for reproductive rights also welcomed the court's ruling on Kavya's case.

Even though India has had a relatively progressive approach to abortion, "the amendments made to the MTP act are still centered around doctors and their opinions. That's why this particular ruling is quite extraordinary," she said.

But for Reena Wani, the head of the obstetrics and gynecology department at Mumbai's Cooper Hospital, warned that the ruling "must be viewed cautiously."

"I would not use the word 'MTP' here. Due to the late stage of pregnancy, doctors would have to induce early labor," she said. "And there are chances that despite an attempt for termination, the child might be born alive…It remains to be seen how the law will handle the case if the child is born alive."

She added that such rulings placed an immense amount of responsibility and pressure on doctors, which might make health practitioners skeptical of performing abortions in the future.

Limited access to safe abortion

Justice Prathiba maintained that India recognized the "choice of the woman," but noted that with the emergence of modern technology to detect fetal abnormalities, issues surrounding abortions were "bound to become more complex."

Health experts also point out that a shortage of doctors and weak health infrastructure impact the outcome of safe abortions.

In 2019-20, the Ministry of Health and Family Welfare reported that rural India faced a 70% shortage of obstetrician-gynecologists. Around 800,000 unsafe and illegal abortions are conducted every year in the country.

The latest data of the National Family Health Survey revealed that around 3% of pregnancies in India are aborted.