Why Indian women race against time to access abortion despite progressive court judgements

In December, a 24-year-old receptionist from Mumbai’s western suburbs discovered to her shock that she was nearly four months pregnant.

In the past, she had experienced problems with her menstrual cycle and a doctor had then prescribed medicines. “I thought it was the same problem.”

Stomach pain and exhaustion prompted her to consult a doctor. A sonography test showed that she was over 20 weeks into the pregnancy.

But when she sought an abortion, a local gynaecologist said the pregnancy could not be terminated since it had crossed the 20-week mark. “She asked me to visit a government hospital,” said the woman.

Abortions, upon the advice of a medical practitioner, are legal under India’s Medical Termination of Pregnancy Act, 1971, until the 20-week mark. An amendment to the law in March 2021 extended the time frame for legal abortions to the 24-week mark of a pregnancy, but only for certain cases. Unmarried women pregnant as a result of consensual sex, like in the case of the 24-year-old woman, were excluded from this.

But in September, the Supreme Court ruled that the law could not discriminate between married and unmarried women and held that the 24-week cut-off is applicable to both.

Though the court’s progressive reading expanded the scope of the law and the reproductive rights of women, significant gaps persist in implementation.

As the 24-year-old woman’s experience shows, the Supreme Court’s ruling has not made much difference on the ground as the law itself has not been modified.

When she approached Mumbai’s Nowrosjee Wadia Hospital, where doctors agreed to operate on her, she was made to wait all day on the day of the surgery.

Finally, the hospital refused to conduct the abortion. “The doctor said I was not married and the law does not permit abortion [for unmarried women beyond 20 weeks],” she said.

The woman then contacted gynaecologist Nikhil Datar, who helped her file a petition in the Bombay High Court. “We challenged the constitutional validity of various provisions of the Act,” said advocate Aditi Saxena.

They showed the High Court bench the Supreme Court judgement from September 2022. The High Court then orally directed the assistant government pleader to ask Mumbai’s Sir JJ Group of Hospitals to carry out the abortion.

The woman finally got the abortion at the 23rd week of gestation. Her partner had to take time off from work to accompany her on numerous visits to doctors, lawyers and court. “His office threatened to fire him for absenteeism,” she said. She also took a short break from the animal centre where she worked as a receptionist. “And I kept thinking this is it, I am never returning to work.”

Gaps in a progressive law

The 24-year-old woman’s experience was not unique. As advocate Saxena said, though jurisprudence on abortion has progressed, the procedure is the hurdle.

Long-drawn-out legal and medical procedures to get to the final stage of an abortion is the norm for most women who seek to terminate their pregnancies after the 20-week mark, despite changes in the law.

The initial 20-week cut-off had drawn criticism for leaving women at the mercy of the judiciary to seek an abortion in cases where the pregnancy was discovered late, or foetal defects were found beyond 20 weeks, or in cases of minor victims of sexual assault who realised belatedly that they were pregnant.

The 2021 amendment expanded the cut-off to 24 weeks.

The rule 3B of the amended law identified seven categories of women who are permitted to abort a foetus: survivors of sexual assault, minors, pregnant women who have had a change in their martial status like divorce or widowhood, physically disabled women, mentally ill women, cases where foetal malformation is detected, and pregnant women in disaster or emergency situations as declared by the government.

Rules are issued after a law is enacted to help with its implementation.

With the 24-week cut-off, a woman requires two medical practitioners to certify that an abortion is safe at that stage of pregnancy.

Even otherwise, when a woman’s pregnancy has not gone beyond 20 weeks, she needs to consult a gynaecologist. “What she needs most is a doctor who agrees to terminate a pregnancy without judging her character,” said Saxena, alluding to uncomfortable questions about women’s choices from doctors.

“A woman has to satisfy the need for abortion to her gynaecologist,” she said.

Women who seek abortion beyond 20 weeks of pregnancy also have to undergo psychiatric evaluation before a medical board decides their fate.

“If an abortion is safe [from a medical point of view], it should simply be a woman’s choice to do it, not the doctor’s,” Saxena said.

The law leaves women at the mercy of doctors to decide their fate, she said.

Even in the case of foetal defects, a category specified in the law, there can be significant hurdles.

Foetal defects and abortion rules

In December, a 26-year-old resident of Jalgaon who was pregnant for the first time, underwent a routine sonography at the 27-week mark when a foetal malformation was detected.

Scans showed that the foetus suffered from microcephaly, a condition in which the head is much smaller than expected, and lissencephaly, where the brain is underdeveloped.

“My sister-in-law’s son suffers from the same birth defect,” said the woman, who did not wish to be identified. “He is nine years old and we have seen the life they lead.”

The woman said that her husband was employed in the administrative wing of a college and his “income is limited”. The couple then decided to abort the pregnancy.

In Pune, where the woman’s parents reside, they first consulted a private doctor who told them to visit Sassoon General Hospital. For an abortion after 24 weeks in the case of a foetal defect, a medical board’s opinion has to be sought.

But the medical board of Sassoon General Hospital rejected the woman’s abortion request citing two reasons: the pregnancy was at an advanced stage and the foetal malformation was not life-threatening.

The Medical Termination of Pregnancy Act caps abortion at 24 weeks, the board told the woman. Her previous sonography, at the 22-week mark, was normal but the foetal defect had been found only in a subsequent scan since certain malformations are detected only at advanced stages of pregnancy.

“I imagined the life my child would lead. The struggle we will have to undergo. And we didn’t want that for our first-born,” she said.

The couple contacted a lawyer in Mumbai and filed a petition in the Bombay High Court. By then, the woman was 32 weeks pregnant, four weeks short of delivery date.

The High Court took into account the social and economic position of the couple, among other factors, and allowed the woman to undergo an abortion. It stated that if the court accepts the Sassoon Hospital medical board’s review, it will “not just condemn the foetus to a substandard life but force the petitioner and her husband to an unhappy and traumatic parenthood”.

“The right to choose is the petitioner’s. It is not the right of the medical board,” the High Court bench observed. It allowed the woman to undergo abortion immediately, in the 33rd week of the pregnancy.

“It was a difficult period,” the 26-year-old woman told Scroll.

Streamline, simplify process

As the process currently stands, for an abortion after the 24-week mark, a woman has to approach a court that directs the health department and the government medical institute to form a medical board.

Typically, the gynaecology department examines the patient, after which the radiology department tests for foetal anomaly. Then, the psychiatric department evaluates the woman after which the board gives its opinion. Once the board submits its report, the court takes a decision. As per law, the report has to be submitted within 72 hours. But advocate Saxena said the process can take a week. “Imagine the mental state of that woman who has to live with the baby every day until a decision is made.”

A medical board, comprising a gynaecologist, radiologist and paediatrician, has to be notified in each district, according to the Medical Termination of Pregnancy Act. This is so that a permanent medical board is readily available and a woman does not have to approach court.

But this has not been implemented on the ground yet. As a result, a woman first goes to court and waits for it to issue orders to a medical college. “Each time a woman approaches a court, a medical board has to be formed,” said gynaecologist Datar. “Ideally, the medical board should be directly approachable.”

According to Saxena, however, the requirement of a medical board should be completely done away with since most women who approach her have already sought advice from two to three other medical experts, “They come with sound and solid advice,” she said. “It makes no sense to go through legal hurdles and back to another group of experts to reassess the need for abortion.”

The process is also taxing for government doctors.

On March 16, Dr Ashok Anand, head of the gynaecology department in Sir JJ Group of Hospitals in Mumbai, had just returned from the college examination hall when he received an email alert. “It is another case for termination of pregnancy,” he said, as he tried to check when to schedule the case hearing.

The Bombay High Court had referred a case of a rape survivor who was beyond 24 weeks pregnant and wanted to undergo an abortion. The court asked Anand to prepare a medical board, review the woman’s case and submit a report on whether an abortion was possible.

“We can waste no time,” he said.

This reporting was supported by a grant from the Thakur Family Foundation. Thakur Family Foundation has not exercised any editorial control over the contents of this article.