In April, the Chhattisgarh High Court allowed a 23-year-old tribal woman to undergo an abortion even though her foetus was older than 20 weeks – the deadline set by the Medical Termination of Pregnancy Act, 1973. The woman from Jashpur district in Chhattisgarh had been raped by her boyfriend, who abducted her and took her to Alwar in Rajasthan, where she remained for nearly a year.
On her return to Chhattisgarh, the woman, now pregnant, was denied an abortion by various Chhattisgarh health authorities. After travelling from hospital to hospital seeking a doctor to perform the procedure, the woman missed the legal deadline for abortions.
As court documents show, the case of the Jashpur woman, along with two other cases being heard at the Delhi High Court and the Supreme court, illustrates all that is wrong with the country's abortion laws and healthcare systems.
A teenage rape survivor approached the Delhi High Court last week asking for permission to terminate her 24-week-old foetus. At the same time, the Supreme Court is hearing the case of a 26-year-old woman whose doctors refused to abort her 24-week foetus by her doctors that has the serious anomaly of anencephaly or absence of the brain and will not survive. The apex court is yet to hear the arguments in the case.
Abortion not a right
Under the Medical Termination of Pregnancy Act, abortion is not a right. It is the discretion of the doctor to give a woman an abortion, if he or she deems fit.
The 44-year-old law allows abortion for women only if the doctors are of the opinion, taken in “good faith” that continuing the pregnancy involves substantial risks for the physical and mental health of the mother or the foetus has serious anomalies.
The conditions considered to be a grave injury to the mental health of a pregnant woman is a pregnancy caused by rape, or a contraception failure for a married woman (it does not take into account contraception failures for pregnant unmarried women).
The Jashpur case should have fit the bill as a case for abortion as prescribed by this law. Yet the woman was denied an speedy abortion. Instead she was tied in bureaucratic knots that are completely unwarranted as per the law.
When the rape survivor returned home almost after a year, she filed a first information report with the police. She was 17 weeks pregnant then.
The police, puzzlingly, sent her to the district collector and the superintendent of police to get their permission for the abortion. The Child Welfare Committee got involved too, and were considering putting the woman's child, when she had it, up for adoption. This despite the fact that there are no laws or rules that say a woman needs permission of any district-level authorities to get an abortion.
But time was ticking for the rape survivor and she was closer to the 20 week deadline. On March 28, the additional superintendent of police in charge of the anti-human trafficking cell promised to immediately follow up on the case and instructed the police officers who filed FIR to take immediate action.
The woman was sent to the district hospital at Jashpur where she came up against the inadequacies of the public health system.
No specialist doctor
Jashpur is a remote tribal districts in north Chhattisgarh with few facilities.
For a second trimester abortion, a doctor needs to perform a minor surgery to remove the foetus. The doctors told the woman that they could not perform the second trimester abortion “for want of expert doctors,” as recorded by the high court. This happened, activists say, despite Jashpur having two doctors trained to perform abortions.“The overall services in the public health system are extremely weak in these remote areas," said Sulakshana Nandi, a health rights activist from Jan Swasthya Abhiyaan. "Doctors do not want to be posted in these areas. Also, in these areas, even the private sector is hardly present. So it’s essential that the government services are available.”
In 2013, the Human Rights Law Network at Chhattisgarh, had filed a public interest litigation seeking abortion services in all the 27 districts in the state. “The government had filed a reply saying that only a few cities provide the service," said Rajni Soren who works with the organisation. "The court gave them a time frame under which they were supposed to provide the services in all the 27 districts.”
A amendment to the Medical Termination of Pregnancy Act proposed by the current government in 2014 seeks to allow doctors and nurses trained in the Ayurvedic, Unani, Sidda and Homeopathy traditions to perform abortions, since it was noted that in the rural remote areas such as Jashpur, specialist doctors are not available.
This proposal created a controversy in the medical community with the Indian Medical Association opposing it on the grounds that such practitioners would not be able to handle emergencies or complications that might arise during abortion procedures.
Not being able to get the abortion done in Jashpur, the rape survivor was then sent to Chhattisgarh Institute of Medical Science in Bilaspur. Instead of performing an abortion immediately, the Bilaspur college asked her to get a copy of the First Information Report she filed with the police from Jashpur, a referral letter from the district hospital, and a medico-legal certificate.
This demand was unwarranted. A woman does not need to produce any documents for an abortion, let alone a rape victim whose case has been explicitly made in the law for granting abortion.
By this time, the woman had crossed the 20-week limit. In severe agony, the girl got in touch with activists in Bilaspur who helped her move the Chhattisgarh High Court.
Justice Manindra Mohan Shrivastava, in his order noted that this girl is financially dependent on her brothers and is not very educated. She clearly stated that she was “under a lot of mental pressure and cannot bear the stigma of being an unwed mother”.
Taking into account the interests of the survivor alone, the court directed the doctors to terminate the pregnancy. In order to ensure the safety of her life, the court ordered a constitution of a team of five doctors who will consider the feasibility of the abortion.
The draft bill to amend the Medical Termination of Pregnancy Act also proposes to increase the time limit for terminating a pregnancy from 20 weeks to 24 week.
“For a gynaecologist, whether the pregnancy is 20 weeks or 24 weeks, it does not make much of a difference while performing abortion," said Dr Neelam Singh, who runs Vatsalya, a non-profit in Lucknow. "The increased number of weeks does not increase the risk of abortion.”
Many doctors hope that the draft bill will be passed in Parliament soon. But one of the major oppositions to this amendment comes from the activists against sex selective abortions. The 2011 census showed that the child sex ratio had dropped from 927 girls to 1,000 boys from 914 girls to 1,000 boys.
The increase in the number of sex-selective abortions would just increase if the amendment comes into force, activists feel.
“I feel there should not be a blanket permission for women who want to abort a pregnancy over 20 weeks," said Singh. "There should be a district-level committee of maybe three to four doctors consisting of public and private doctors who should give their opinion. But this committee should be able to respond to the client within a week.”
She admitted that this may create administrative hassles. “It depends on how well the board will function,” she said. "They should have people in the committee who are unbiased
For now, women like the Jashpur rape survivor have to go to court.
“Not all women have the courage to move the court," said Dr Nikhil Datar, medical director Cloudnine Hospital, Mumbai who had earlier moved the Supreme Court seeking abortion rights between 20-24 weeks. "I got a call from a doctor colleague who said that a woman whose foetus has multiple anomalies. This foetus was 22-weeks old. What does the women do in such a situation?”
And there are obstacles to overcome even after court orders, as the Jashpur woman found out.
“Even after this order, the doctors did not want to conduct the abortion," said Soren, who also argued the case for the rape survivor. "After two days passed, we had to mention it in court again, and the dean and the gynaecologist was called to the court. It was very unclear why they did not want to conduct the abortion. But, finally they conducted the abortion.”
Getting institutional support for an abortion after 20 weeks is not a norm. In 2015, the Punjab and Haryana High Court refused to grant permission for an abortion in a case of a rape a 13-year-old girl whose pregnancy had exceeded this time limit.
“During pendency of amending the law, we are creating victims,” said Datar. "It does not make any sense."