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SC allows abortion of 30-week foetus: What is the law on abortions, and what does the court consider?

Late abortions have sometimes been allowed in certain situations in the past, while in other cases, they have been denied. India’s law on abortion, known as the Medical Termination of Pregnancy Act (MTP Act), is generally seen as giving women the right to choose and is considered liberal. However, there have been instances where women have sought permission from the courts for abortions later in their pregnancies, indicating a potential gap in the law.

Recently, the Supreme Court of India made headlines by permitting a 14-year-old girl, who was a victim of sexual assault, to terminate her pregnancy, which was almost 30 weeks along. The Chief Justice of India, D Y Chandrachud, leading the Bench, described it as a “very very exceptional case” where the girl needed protection.

The decision was influenced by a report from a hospital in Mumbai, which stated that continuing the pregnancy could harm the physical and mental health of the young girl. This case brings to light the complexity surrounding late-term abortions and the legal considerations involved.

India’s MTP Act, established in 1971, outlines the circumstances under which abortion is permitted:

  1. Up to 20 weeks of pregnancy, termination is allowed based on the recommendation of one doctor.
  2. In pregnancies between 20 to 24 weeks, abortion is allowed under certain exceptions, but only after evaluation by two registered medical practitioners.
  3. Section 3B of the MTP Act specifies seven categories where termination is permitted, including cases of statutory rape involving minors, sexual assault, and situations where there is a change in marital status during pregnancy.
  4. After 24 weeks of pregnancy, termination can only be allowed if there is substantial fetal abnormality, and a medical board at approved facilities must make the decision.

Despite these regulations, there have been instances where courts have allowed abortions beyond the stipulated period. For example, in February of this year, the Supreme Court refused a 26-year-old woman’s request to terminate her 32-week pregnancy. On the other hand, in August 2023, the court allowed a rape survivor to terminate her pregnancy at 27 weeks and three days.

The issue of fetal viability, or the ability of a fetus to survive outside the womb, has also been a point of contention. While India’s law leans towards a woman’s right to choose, there are discussions about balancing the rights of the unborn child. This balance is crucial, especially concerning cases where late-term abortions are considered.

In some instances, courts have overturned decisions made by medical boards regarding abortion. For instance, in the case of ‘Bhatou Boro v. State of Assam’ in 2017, the Gauhati High Court overruled a medical board’s refusal to allow termination of a pregnancy of over 26 weeks involving a minor rape survivor.

Comparisons have been drawn between India’s abortion laws and those of other countries, particularly the United States. The US Supreme Court’s landmark decision in ‘Roe v Wade’ established abortion as a constitutional right, allowing it up to the point of fetal viability. However, there are criticisms that using fetal viability as a benchmark for abortion may be arbitrary, given advancements in medical science.

Critics argue that India’s law shifts the decision-making power regarding abortions after 20 weeks to doctors rather than women themselves. This aspect of the law has not been extensively challenged in court, but the increasing number of cases where women seek legal intervention late in their pregnancies highlights a potential gap in legislation.

Overall, India’s legal framework on reproductive rights tends to prioritize a woman’s autonomy in decision-making regarding abortion. However, ongoing debates and legal challenges indicate the need for a nuanced approach that considers both the rights of women and the interests of the unborn child.