In October last year a rape survivor, a minor, approached a district court in Rajasthan asking to be allowed to terminate her pregnancy. She had been sexually assaulted, after which a petition was filed by her mother.

At first the court directed the chief medical officer to examine the girl, and finally rejected the application since her pregnancy exceeded the 20 week limit mandated in the Medical Termination of Pregnancy Act.

After this the girl and her mother approached the High Court, which constituted a single judge bench; at its request the girl was medically examined, and the court concluding there was no serious threat to her life or health rejected the minor rape survivor’s petition.

In its judgment the High Court argued that it was equally important to protect the right to life of the “prospective child”, which should be given priority over women’s right to abort.

It also observed that the petition had been filed by the victim’s widowed mother, who was not acquainted with the feeling of carrying a child.

The state government of Rajasthan immediately filed an appeal against the judgment and the girl was allowed to terminate her foetus. The case throws light on the grim administrative process of securing access to abortion.

A recent report released by the Pratigya Foundation found that between May 2019 and August 2020 a total of 243 cases pertaining to abortion were filed across high courts in India. 138 involved adult women while 105 involved minors.

This marks a sudden increase: according to the report only 175 such cases were filed in the preceding three years.

The report found that high courts upheld abortion rights in 84% of the cases examined, denying permission only in 9%. According to lawyer Anubha Rastogi who authored the report:

“The increasing number of cases only indicates to the fact that access to safe and legal abortion services in this country still leaves a lot to be desired. It is imperative that any change in law takes note of these increasing trends and moves towards a rights-based, inclusive, and accessible legislation on abortion.”

Rastogi stressed there is a need to amend laws such that the right to abortion involves a registered service provider and a pregnant person, rather than third party organisations like a medical board.

According to the Medical Termination of Pregnancy Act, women in India can abort their foetus up to 20 weeks after gestation, and only on certain grounds, including failed conception, sexual assault or serious foetal anomalies. If the pregnancy threatens the woman’s life there is no limit as such.

The Lok Sabha passed amendments to the act in March which are pending now in the Council of States. The amendments would legalise abortion for up to 24 weeks after gestation.

“The cutoff period for the gestation was decided keeping in mind the available technology at that time, since after 12 weeks the bones of the foetus starts to enlarge and if the pregnancy was continued for a longer period the abortion would become unsafe for women,” says Dr Alka Sehgal, who heads the gynaecology department at the GMCH Chandigarh.

She says abortions have become much safer now with advances in technology and better availability of drugs.

Sehgal thinks the real challenge is providing access to healthcare facilities to everyone – this would include an expert radiologist and a well equipped ultrasound facility lab – which she says is still a far dream.

A bone of contention is protecting the rights of women versus protecting the foetus of an unborn child. According to Swapnil Tripathi, an advocate in New Delhi:

“Indian courts lay more focus towards protecting the interests of the unborn child. So if you are pregnant and the fact that aborting it might cause you a physical or moral injury, the woman has no option but to continue with the pregnancy.”

“Usually when rape victims approach courts for abortion, they take a lot of time in deciding the case, since they assign their own medical board which takes its own time to give the report, and it just delays the case by days and months… More the number of days, higher the chances of getting complications in the abortion.”

Therefore, says Tripathi, there is an urgent need to amend the law, which would also set a timeframe in which the court must decide such a case.

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