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India’s abortion law puts women at risk

BMJ 2015; 350 doi: https://doi.org/10.1136/bmj.h3294 (Published 25 June 2015) Cite this as: BMJ 2015;350:h3294
  1. Nikhil Datar, consultant in obstetrics and gynaecology, Cloudnine Hospitals and Lifewave Hospital, Mumbai, India
  1. drnikhil70@hotmail.com

A legal amendment that should bring clarity to the arbitrary cut-off of 20 weeks’ gestation for abortion needs urgent redrafting, writes Nikhil Datar

“Why does the law not allow me to terminate this pregnancy?” a woman asked me in my clinic. She was 22 weeks pregnant, and ultrasonography had shown that the fetus had anencephaly. It was another frustrating moment for me. The Medical Termination of Pregnancy Act, India’s abortion law, allows termination of pregnancy until only 20 weeks’ gestation. But international organisations working on ethics and reproductive rights strongly support women’s right to terminate their fetuses irrespective of gestational age if they are diagnosed as having severe abnormalities.1

The act was passed in 1971, thus legalising abortion in India. The Indian Penal Code made causing miscarriage or harm to an unborn fetus a criminal offence, but the act outlined a few exceptions and allowed medical practitioners to perform abortions under strict conditions.

Section three of the act allows termination of pregnancy by a doctor when the life of a pregnant woman is at immediate risk at any time in pregnancy; when there is a substantial risk that if the child were born it would have physical or mental abnormalities as to be seriously handicapped (until 20 weeks’ gestation); or when the mental or physical health of the woman is at risk (until 20 weeks’ gestation). This includes mental anguish from pregnancy arising from rape or after failure of contraception among married women.2

No explanation for 20 week cut-off

Except for when a woman’s life is at immediate risk, the act restricts the termination of pregnancy after 20 weeks of gestation, without explanation for this arbitrary cut-off. Even the 1966 report from which the act arose does not specifically mention a cut-off point. This means that if a substantial fetal abnormality is detected after 20 weeks, the woman has no choice but to continue the pregnancy, even if she does not wish to.3

The age of viability in India seems to be about 26-28 weeks, but this is not pronounced in law.4 International organisations such as the World Health Organization and the International Federation of Gynaecology and Obstetrics define abortion as expulsion of the products of conception at or below 22 weeks’ gestation.1 Nuffield Council on Bioethics does not recommend the resuscitation of fetuses born before 23 weeks’ gestation.5

India’s arbitrary 20 week cut-off compels women to make ill informed decisions. If ultrasonography, typically performed at about 18 weeks’ gestation in India, indicates a “suspicious variation in fetal anatomy” the physician needs to ascertain the degree of seriousness with additional prenatal diagnostic tests. By the time a definite diagnosis can be made, and the woman understands the prognosis and makes a well informed decision about continuation or termination, the pregnancy might have advanced beyond 20 weeks. This encourages women to terminate pregnancies in haste before definitive diagnoses are made.

Compelling women to continue pregnancies against their wishes may cause physical and mental trauma. Women may choose to have illegal terminations, adding to the burden of unsafe abortions and related maternal mortality, which is a major concern around the world.6

Amend the law

Amending the law is the only legitimate solution to the problem. In 2008 I filed a case, with my patient Niketa Haresh Mehta, challenging the specific provisions of the act that restrict termination after 20 weeks, especially when the fetus is diagnosed to have serious abnormalities. This is still being decided in the Supreme Court of India. Two other women unhappy about the provisions in the act related to the limits of gestational age have also petitioned the Supreme Court of India in 2012. One was denied termination when the fetus was diagnosed as having anencephaly at 24 weeks, and the other had to make a hasty decision to terminate her first pregnancy when the fetus was diagnosed as having structural abnormalities with doubtful prognosis.

In 2014 the government of India proposed two changes to the act. The first allows non-allopathic practitioners and nurses to terminate pregnancies. This has raised questions about the quality and safety of abortion services.

Ambiguously drafted

The second suggested change is ambiguously drafted. It states that the duration of pregnancy is immaterial when dealing with substantial fetal anomalies, but also that for terminations between 20 and 24 weeks’ gestation a woman must fall into one of the “categories as may be prescribed by the government.”7 These clauses are contradictory. The draft legislation does not define the categories and does not provide a clear solution for women who have substantial fetal abnormalities but are not included in any of the categories. These proposed changes need immediate rectification.

Until the Indian parliament amends the law unambiguously, many women will continue to make ill informed decisions about termination of pregnancy or risk their lives in the hands of quacks for illegitimate and illegal terminations. Because they are illegal, these terminations will never be reported to prove the magnitude of the problem. Ultimately the rights and health of women will continue to be violated.

Notes

Cite this as: BMJ 2015;350:h3294

Footnotes

  • Competing interests: I have read and understood BMJ policy on declaration of interests and declare the following: I only conduct abortions before 20 weeks’ gestation and I am not a legal practitioner.

  • Provenance and peer review: Not commissioned; not externally peer reviewed.

References

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