Late Termination Of Pregnancy In India

KEY TAKEAWAYS

• The Kerala High Court, in a landmark decision ordered the Thiruvananthapuram Medical College to terminate the foetus of a 10-year-old girl who was allegedly impregnated by her own father.
• Only a foetus within 24 weeks could be legally terminated under current laws. Following that, the mother had taken the case to the High Court.
• The Medical Termination of Pregnancy (MTP) Act 1971 was recently revised by the Indian government in order to give comprehensive abortion services to all women in need. The top gestation limit for numerous types of women, including rape survivors, incest victims, and other vulnerable women, has been raised from 20 to 24 weeks as a result of the new legislation.

INTRODUCTION

The Kerala High Court, in a landmark decision ordered the Tiruvananthapuram Medical College to terminate the foetus of a 10-year-old girl who was allegedly impregnated by her own father. Delivering the judgement, High Court Justice P V Kunhikrishanan stated that the whole society should lay their heads down in shame for such an act.

The High Court, after hearing a petition from the expectant girl's mother, ordered the medical team to make an appropriate decision and terminate the pregnancy because the foetus was now 31 weeks old. The court that had previously heard the petition had ordered the formation of a medical board and the submission of a report on the abortion options. Following this, the medical board issued a report stating that because the pregnancy had progressed beyond 31 weeks, the girl would have to be put under anaesthesia and the baby removed by surgery. The medical board also stated that because the foetus is 31 weeks old, it has an 80% probability of surviving the abortion surgery.

The medical study also cautioned of the possibility of neurological issues developing in the infant if it survives the abortion.

The High Court then delegated decision-making to the medical staff, stating that if the baby is alive after surgery, all life support systems should be supplied to it, and the hospital should ensure necessary treatment for it to survive. The Court stated that if the petitioner was unable to comply with the obligation, the government and the Department of Women and Children should do so. The doctors refused to terminate the baby since it was unlawful, and hence, the mother of the expectant rape survivor approached the High Court upon learning that only a foetus within 24 weeks could be legally terminated under current laws.

CHANGES IN THE LAW

The Medical Termination of Pregnancy (MTP) Act 1971 was recently revised by the Indian government in order to give comprehensive abortion services to all women in need. The top gestation limit for numerous types of women, including rape survivors, incest victims, and other vulnerable women, has been raised from 20 to 24 weeks as a result of the new legislation.

Abortion is illegal under the penal code, however with the MTP in place, exceptions are allowed in such cases. Others can have the operation if they receive the doctor's permission before the 20-week mark.

This restriction does not apply in circumstances when a medical board has determined that there are significant foetal abnormalities.

Furthermore, for terminations between 20 and 24 weeks, the consent of two health-care practitioners is essential. Only one provider's opinion is required prior to this time period.

Finally, the bill included a secrecy clause that prohibits the disclosure of a woman's name or other personal information to anyone unless she has given her consent.

The new guidelines aim to expand MTP services to unmarried women under the failure of contraceptive clause, allowing women to choose safe abortion regardless of their marital status. However, pro-choice advocates argue that legislation is only the first step in the right path.

RELATED JUDGEMENTS

Dr. Nikhil Dattar & Ors. V. Union of India, (2008)

When it comes to India's abortion legislation, the case of Nikita Mehra is crucial. The question in this case was whether the abortion limit should be raised from the current twenty weeks of gestation to twenty-four weeks or more. In this case, the gestation period had exceeded twenty-five weeks, which was over the time limit set by the court. The petitioners, a married couple and their physician, requested that the unborn have a congenital heart blockage at a later stage, and they expressed their helplessness at having to go through the emotional and financial strain of giving birth to a kid who would have major health problems.

Some observations are a breath of fresh air, as courts have often taken a conservative approach whenever the rights of women vis-a-vis a visible foetus are at play.

For example, in Re: Suparna Debnath and Anr. v. State of West Bengal (2019), the Calcutta High Court dismissed a woman's petition to terminate her 26-week pregnancy on the grounds that the foetus' right to life exceeds the mother's emotional anguish. The unborn child in question had Down's Syndrome, as well as heart, abdominal, and esophageal issues.

Similarly, in Indulekha Sreejith v. Union of India & Ors (2021), the Kerala High Court rejected a woman’s petition to terminate her 31-week pregnancy, on the ground that the unborn child had rights under Article 21 the moment it transforms into a foetus. The Court went on to observe that the rights of the unborn are at par with a born child.

While deciding on the matter of X v. State of Maharashtra (2022), the Bombay High Court's Nagpur Bench allowed a rape victim to terminate her 25-week-old pregnancy, stating that a pregnancy produced by rape would bring sadness and serious harm to the girl's mental health. The Court considered the judgement of a certified medical practitioner in determining the harm to the pregnant woman's physiological and mental health because the pregnancy extended longer than the 24-week limit stipulated by the Medical Termination of Pregnancy Act, 2021. The medical board’s report stated that since the girl is unmarried, the constitution of pregnancy would harm the girl, both physically and mentally, and if the baby is delivered, it won’t receive any proper care.

The verdict of a bench of Justices SB Shukre and AL Pansare was based on the medical board's findings. A complaint had been lodged, the police had recorded an offence punishable under Section 376 (2)(n) of the Indian Penal Code, 1860, and an investigation was underway, according to the report. The girl's written agreement must be secured before the pregnancy can be terminated, according to the Court.

In another of these denials involving the rape of a juvenile, Alakh Alok Srivastava v. Union of India (2020), the Court relied on the medical board's opinion that prolonging the pregnancy was safer for the unborn child than terminating it. When the petitioner was a 10-year-old pregnant rape victim with a 32-week pregnancy, the Court decided against granting abortion. The Supreme Court had urged the Centre to direct that permanent medical boards be established in states to rapidly examine abortion requests beyond 20 weeks of pregnancy, and the Centre had given directions to that effect.

THE CURRENT SCENARIO

YYYY vs Union of India and ors (2022)

Even though the kid has an 80% probability of surviving the treatment, Justice PV Kunhikrishnan believes there is a risk of severe consequences affecting the 10-year old’s health.

"Since the victim child is only aged ten years, there is a chance for medical complication to her health. Considering the entire facts and circumstances of the case, according to me, this is a case in which this Court should invoke the jurisdiction keeping in mind the Almighty," the Court said in its judgement.

This is a case where the Court should exercise its jurisdiction while remembering the Almighty.

As a result, the Court granted the concerned hospital permission to terminate the pregnancy and gave the State specific instructions to safeguard the child's well-being if it is born alive.

The Court also expressed regret for the fact that the suspected rapist is the little girl's own father, and stated that society as a whole should be ashamed.

"The alleged culprit is her own father. If the allegation is correct, I am ashamed of and of course, the entire society should bow their head for the same reason. I am sure that long arm of our legal system will punish him in a manner known to law," the judgement stated.

The decision was reached in response to a petition filed by the mother of the 10-year-old survivor, who sought permission to undergo medical termination of her pregnancy under the Medical Termination of Pregnancy Act, 1971, as well as a directive to the concerned hospital to carry out the procedure in accordance with the law.

The hospital was ordered to form a Medical Board and provide a report within two days when the case initially came before the Court.

According to the study, the pregnancy was 'breech presentation,' meaning the foetus was positioned so that its legs and posterior came out first, necessitating a surgical delivery under anaesthesia.

It also stated that the baby has an 80% probability of surviving at 30 weeks 6 days, with an expected weight of 1.557 kg.

However, there is a danger of neonatal morbidity as well as negative neuro-developmental consequences for the newborn baby, according to experts.

Furthermore, the hospital is ethically and medicolegally obligated to resuscitate and care for the newborn baby due to the fetus's age.

After reviewing the findings, as well as the minor rape survivor's age and other circumstances, the Court agreed to give the hospital a week to complete the necessary procedures under the Medical Termination of Pregnancy Act.

Furthermore, the Court ordered that if the baby is born alive and the child's parents are unwilling or unable to assume responsibility for the child, the State and its agencies must assume full responsibility for the child, including medical support and other facilities as may be reasonably possible, while always adhering to the principle of the child's best interests and the statutory provisions provided in the Juvenile Justice Act.

CONCLUSION

Unsafe abortions are the third-leading cause of maternal mortality in India, despite of the fact that the country professes to have progressive abortion regulations. Nearly 80% of Indian women are unaware that abortion within the first 20 weeks of pregnancy is allowed.

In the Indian context, the concept of choice remains unstable.

It is said that there are only around 50,000-70,000 obstetrician-gynecologists in a country of 1.36 billion people and most of these are based in cities or towns, and not all of them are either pro-choice or initiating abortion provision.

The revisions can be described as a "tale of missed possibilities," pointing out some key elements that are believed to have been overlooked, such as the movement of authority from health care providers to individuals who did not wish to continue the pregnancy.

The modifications do not strengthen the pregnant person's autonomy and agency, nor do they take a step toward decriminalising abortions. They also do not change the phrasing to reflect "pregnant individuals" rather than women, which is claimed that it would have made the law trans-inclusive.

The amendments also don't guarantee that no one would be turned away or coerced into an unsafe abortion, or that medical abortion medicines will be more widely available.