Ethical Issues concerning Legislation in Late-Term Abortions in India

Abstract

Late-term abortions (after 20 weeks of gestation) are an issue of immense debate in India, where the Medical Termination of Pregnancy Act, 1971 permits abortions only up to 20 weeks of gestation. In special situations, such as pregnancy arising out of rape especially in the case of minors and the late diagnosis of congenital anomalies, there are no clear guidelines on the legal protocol that is to be followed, often resulting in a lack of consistency in terms of legal decision-making, as well as undue prolongation of legal procedures. The Medical Termination of Pregnancy Act prohibits late-term abortions on the basis of personhood and viability of the foetus, to reduce sex-selective abortions and as it considers such abortions to be unsafe. However, a legal prohibition of late-term abortions does not prevent them, and this has led to a surge in the number of illegal, unsafe abortions that are detrimental to the health of women. There is also physical, mental and financial distress to women who are forced to continue their pregnancy, coupled with a lack of governmental support for the same. In comparison of India’s abortion laws with Singapore’s, which are more liberal, and Philippines, which are more restrictive, liberalisation of abortion laws appears to have a better outcome in reducing the incidence of unsafe abortions. This paper argues that the way forward is to liberalise the laws in terms of not only extending the gestational limit to at least 24 weeks but also making exceptions allowing no gestational limit in special cases that warrant them, such as rape victims and late foetal anomalies. The laws, drafted and implemented in consultation with medical professionals in the field, must also be lucid and not leave any room for misinterpretation by courts and health care providers.

Introduction

Case Studies

Case 1 (Sinha 2017)

A 37-year-old woman from Maharashtra, India approached the Supreme Court in 2017 with a plea to terminate her 26-week-old foetus. Her ground for the plea was that the child had been detected to have Down syndrome. The Court rejected her plea, however, as she was too far along in her pregnancy and there was no evidence of any threat to the life of either the mother or the foetus. Before 20 weeks of gestation, pregnancies in which the foetus is detected to have Down syndrome are usually terminated. The Supreme Court said off the record that it was sad for the mother to have to give birth to a mentally retarded child, but on the record, the woman was instructed to continue with the pregnancy.

Case 2 (BBC News 2017)

In 2017, a 10-year-old girl from Chandigarh, India was found to be 32 weeks pregnant as a result of sexual assault by her maternal uncle. The girl had been ignorant about what had happened to her, and her pregnancy had only been detected at 30 weeks when she experienced abdominal pain and had been taken to a hospital. The Supreme Court denied the girl permission to terminate the pregnancy, due to the late stage at which she had presented. Several medical officials had opined that continuing the pregnancy would be hazardous to the health of both the mother and the foetus because the girl’s pelvic bones were still not developed. However, the Court ordered for the pregnancy to be continued, and the girl delivered a baby through a Caesarean section. The baby was then put up for adoption as the girl’s family did not want to have anything to do with it.

Abortion or termination of pregnancy is governed in all parts of India, except Jammu and Kashmir, by The Medical Termination of Pregnancy Act, 1971. This Act gives strict regulations for the legal termination of pregnancy. In pregnancies that meet the legal grounds for abortion, termination can be done up to the gestational age of twelve weeks with the approval of a single registered medical practitioner, whereas between twelve and twenty weeks of gestation, the approval of at least two medical practitioners would be required (Ministry of Health and Family Welfare 1971).

Pregnancies which have crossed 20 weeks of gestation come under Section 5 of the Medical Termination of Pregnancy (MTP) Act, which states that termination can be performed only if it is immediately necessary to save the life of the pregnant woman, after the approval of courts (Ministry of Health and Family Welfare 1971).

In special circumstances such as sexual assault, particularly of minors, and congenital defects detectable only late in the pregnancy, the author believes that the gestational limit on abortions is unjust. In India, in the year 2016, 38,947 cases of rape of women were reported (National Crime Records Bureau 2016). Every 155 min, a child under sixteen is raped, and every thirteen hours, a child under ten is raped. In the year 2015 alone, more than 10,000 children were raped (Childline India n.d.).

Against this background, the paper highlights the ethical issues surrounding late-term abortions (termination of pregnancy beyond 20 weeks of gestation) in India. It also compares and contrasts India’s laws with those of the Philippines and Singapore—two other Southeast Asian countries. This comparison has been done to study the effects of stricter laws, as in the Philippines, and more liberal laws, as in Singapore, on the patterns of abortion vis-à-vis India.

The Evolution of the Abortion Laws in India

The Medical Termination of Pregnancy Act, 1971

The Indian Penal Code 1862 labelled abortion as a crime, which would entail the punishment of both the woman who opted for it and the person who performed the abortion. After this, maternal mortality went up in consequent years due to an increasing number of unsafe abortions carried out by unskilled personnel. It was the Shah Committee in 1966 that recommended the legalisation of abortion in India (Siddhivinayak 2004). The MTP Act was then passed in the year 1971, applicable in all Indian states except Jammu and Kashmir.

This Act permits abortions to be carried out before 20 weeks of gestation on grounds including risk to the physical and mental health of the mother and events such as failure of contraceptives, pregnancy following rape, and severe deformity or disease in the foetus (Ministry of Health and Family Welfare 1971). The Act, thus, seems to be quite liberal in the early gestational period.

Legal Status of Late-Term Abortions in India

As the viability of the foetus increases, matters become more complicated and ambiguous in the implementation of the MTP Act. An exception can only be made to the time clause of 20 weeks if there is a considerable risk to the mother or to the foetus by continuing the pregnancy. There is no clear explanation offered as to why 20 weeks has been selected as the upper limit for abortions. It is speculated that this is attributable to the first perception of foetal movement (quickening), which occurs around this time. If the mother wishes to terminate the foetus at this stage, legal counsel is usually sought.

The MTP Amendment Bill, 2014

To address the shortcomings of the outdated Medical Termination of Pregnancy Act of 1971, the Ministry of Health and Family Welfare (2014) released an MTP Amendment Bill in 2014. In addition to improving access to safe abortion services and increasing the autonomy of women in the termination of their pregnancies, this Bill proposed to increase the upper limit of gestational age for abortion from 20 to 24 weeks.

Five years later, however, this Bill has still not been implemented. In 2017, the Prime Minister’s Office advised the Ministry to ensure better implementation of the existing act, as well as the Pre-Conception-Pre-Natal Diagnostic Techniques (PC-PNDT) Act (Kokra 2017). This Act addresses a different issue of sex-selective abortions; it regulates the use of diagnostic techniques to detect genetic defects and prevents the misuse of techniques for pre-natal sex determination leading to female feticide (State Legal Services Authority, UT, Chandigarh n.d.). The Prime Minister’s Office therefore did not agree to increase the gestational limit for abortions, nor the range of situations in which late-term abortions would be permitted. This was due to the opinion that increasing the provider base for abortions would lead to an uncontrolled rise in abortions in the country (Ghosh 2017).

Why does the MTP Act Prohibit Late-Term Abortions?

The MTP Act initially prohibited late-term abortions to reduce the incidence of sex-selective abortions in the face of the social evil of female feticide. However, with the availability of techniques like chorionic villous sampling, sex determination of the foetus is possible as early as 10 weeks of gestation. Furthermore, even if the gestational limit were to be extended, stronger enforcement of the PC-PNDT Act would delink the MTP Act from sex-selective abortions.

The MTP Act uses the viability of the foetus and the ability of the foetus to perceive pain as a ground for choosing the upper limit for termination. However, there is no conclusive evidence-based proof that the foetus can perceive pain at this stage, nor is there evidence that the foetus cannot perceive pain before this stage. The concept of ‘viability’ of the foetus as a basis for setting the upper limit is also questionable, as with developments in the field of ultrasonography, the age of what is perceived as an alive ‘viable foetus’ keeps decreasing (Wiegel 2017).

The concept of ‘personhood’ of the foetus is a controversial one. There is no clear consensus on when exactly the foetus can be labelled as a person, or an individual with a definite right to live. Since the foetus is considered a nascent human life, it is believed to have the right to continue its existence when it crosses the period of viability. However, traditional religious perspectives (Emandi 2017) believe that the foetus deserves to have rights as soon as it is conceived, and this makes abortion in itself unethical, even in the early stages of pregnancy. Going by this logic though, if the law permits abortions before 20 weeks, it should also permit abortions beyond 20 weeks, in either case, there is a potential human life involved.

The ‘period of viability’ is shaky ground to base decisions on, and this leads to many ethical dilemmas. The author believes that personhood or viability of the foetus cannot be given precedence over the rights of the mother to decide whether to continue her pregnancy, as it is a decision that will affect the rest of her life.

Another common reasoning that has been employed is that abortions are more unsafe when they are performed after 20 weeks of gestation. This data is not entirely reliable as most late-term abortions recorded in India are performed due to complications that arise in the second trimester owing to India’s legal abortion limit of 20 weeks; thus, they tend to demonstrate a higher mortality rate compared with early abortions before 20 weeks. Additionally, this mortality rate can be reduced by improving access to skilled abortion services and intensive post-abortion care to effectively tackle potential complications. The enforcement of bans on late-term abortions due to concerns for safety may be counterproductive, as the lack of legal permission drives these women towards illegal, unskilled alternatives, which are inevitably more unsafe. Furthermore, with scientific advancements in medical termination, there are methods available to facilitate safe abortions even after 20 weeks of gestation. Thus, the author feels that efforts must be directed at developing technology to make late-term abortions in specific circumstances safer as opposed to banning them altogether.

The Consequences of Late-Term Abortions Being Illegal

Prohibiting late-term abortions does not prevent late-term abortions. As legislation becomes tighter on the issue, more and more women are forced to seek alternate means to terminate their pregnancy, which are unsafe as much as they are illegal. According to a study performed by the Guttmacher Institute on abortions in India (Singh et al. 2018), 5% of abortions performed in India in 2015 were done outside of health facilities by methods that were probably unsafe. While this might not seem like a lot, it amounts to over 0.8 million women undergoing unsafe abortions in the country, which is a grave situation. Unsafe abortions were found to be one of the leading causes of maternal mortality in India (World Health Organization 2008).

In Cases of Pregnancy Following Sexual Assault

In India, rape is the fourth most common crime against women (National Crime Records Bureau 2016). In cases of sexual assault, particularly involving minors, there is a high probability of a lack of awareness about potential pregnancy and its implications. These pregnancies are often detected late, many even after 20 weeks.

Pregnancies caused by sexual assault cause ethical unease when viewed through the lens of late-term abortions. One way to view it is that the foetus is not at fault and its termination is equivalent to punishment for a crime that it did not commit. At the same time though, the fact remains that the woman is the unfortunate victim of a heinous crime and that she should be given the option to terminate such a foetus not only on physical but also mental grounds. The question then arises of whether it is the rights of the foetus over the mother or the rights of the mother over the foetus that supervenes. As it is the mother who is ultimately responsible for her child both financially and otherwise, the reader opines that the weight of the mother’s choice in the matter must not be undermined, and that her rights must supervene.

On seeking legal counsel, women are ordered by the Supreme Court to go ahead with the pregnancy. Being forced to embrace motherhood can pose a threat to the physical and mental health of not only the young mother, who is often a minor, but also the baby delivered by her over the course of its life.

Furthermore, even though it is the governmental legal system that orders the woman to go forward with the pregnancy, there is no governmental support provided in raising the child. In addition to being physically and mentally incapable, the families may therefore also be financially incapable of bringing up the child satisfactorily. Additionally, there is also a lot of stigma attached to children born out of rape (Gupta and Sagar 2017). This might evolve into a situation where not just the lives of the mother and her baby but also those of her entire family are ruined.

In Cases of Late Foetal Anomalies

With advances in technology, it is now possible to detect certain genetic anomalies, such as the Arnold Chiari malformation prenatally. However, often this prenatal diagnosis is only possible after 20 weeks of gestation, at around 24 weeks of gestation (Fujisawa et al. 2006).

The diagnosis of foetal anomalies may thus lead to a situation where a defect which might adversely affect the quality of life of the foetus is detected after 20 weeks; however, since it is too late for the pregnancy to be terminated and since it may not be an immediate threat to the life of the foetus, the child is still brought into the world. The 47-year-old MTP Act of 1971 did not foresee these diagnostic advancements while setting its upper limit. Also, the expenses incurred in raising the child and providing it with at least a basic quality of life are usually tremendous and may render the child’s family helpless with every passing year of the child’s life.

When the congenital defect is one that is conducive to life but leads to disabilities in infancy, is it morally right to deprive the foetus of an existence? This can be considered in two contradictory ways: Firstly, the abortion of a disabled child solely as a consequence of its disability seems unjust. A disabled life must not be considered inferior to an abled life, and a disabled foetus must, therefore, enjoy the same rights as an able foetus. Terminating a potential life simply because it is not ideal or because it is more convenient to do so does not seem to be justified. Finances aside, it is unjust and discriminatory to look upon a disabled foetus as a ‘burden’. Secondly, however, the pro-choice movement gives the woman supreme authority over her body and the foetus which is deriving sustenance from it. In this view, it is the mother’s prerogative to abort the foetus, irrespective of which stage of her pregnancy she is in. Since financial aid for mothers with disabled children is scarce in most countries, including India, the author feels that it is perfectly reasonable for a mother to recognise that she will not be able to provide for such a child, and thus take measures to prevent its entry into a world of poverty. In a way, she is protecting both herself and her future child from a lifetime of difficulties.

The Decision Makers Implementing Abortion Laws in India

The MTP Act puts a lot of pressure on the Indian legal system, which has been found to be quite variable with its judgements on this issue. This inconsistency on the part of the legal system has further led to uncertainty among doctors in the field about the extent of their authority in the decision-making process. The clause of ‘considerable risk’ to the mother and foetus as mentioned in the MTP Act is ambiguous. What constitutes considerable risk can be subjective, and the crux of the issue is that this risk is assessed not by a gynaecologist or a psychiatrist but a legal panel.

Comparison of India’s Abortion Laws with Those of Philippines and Singapore

In order to see the effects of abortion laws that are more restrictive than those of India, as well as laws that are more liberal, a comparison is done with Philippines and Singapore, two Southeast Asian countries, respectively (Center for Reproductive Rights 2008).

Philippines

The Penal Code of 1870 and the Revised Penal Code of 1930 deal with the ‘felony’ of abortion in the Philippines (Center for Reproductive Rights 2010). Abortion is completely illegal in the country. It sentences a person who brings about abortion and the person who opts for an abortion to imprisonment. This is mostly attributed to religious reasons, wherein according to the principles of Catholicism, abortions and even contraceptive use are considered a sin.

As a result of this strict legislation, stigmatisation, and lack of access to safe abortion services, women undergo abortions illegally, often by unsafe means. The Philippines has one of the highest proportions of unsafe abortions; in the year 2012, there were over 610,000 abortions in the country, and abortion rates have been on the rise over the years (Hussain and Finer 2013). It has one of the highest maternal mortality rates in the world—114 per 100,000 live births in 2017 (CIA 2015). This goes to show that the lack of legal access to abortion can be quite harmful. While India’s abortion laws do require re-evaluation, it has still come a long way since 1967, where as a consequence of its colonisation by the British, abortion was disallowed as per Section 312 of the Indian Penal Code (Writing Law 2018).

Singapore

The Termination of Pregnancy Act, 1969 (Singapore Statutes Online 2007) states that the termination of pregnancy in Singapore is allowed up to 24 weeks. Since 1974, Singapore is one among only three Southeast Asian countries (the others being Vietnam and Cambodia) to allow for abortion upon request by a woman (Chettiar 2018). This is because the policymakers came to a consensus on the fact that the woman involved would be in the best position to decide whether she should get an abortion. The mother’s decision was complemented by the physician’s role in verifying that there were sound reasons for the aforementioned decision and that there was no medical contraindication (Chen et al. 1985). Thus, abortion is easily accessible and liberal in Singapore.

Termination of pregnancies beyond 24 weeks is punishable by imprisonment unless it is considered necessary to save the life of the mother.

Further, despite this liberalisation, abortion rates are much lower in Singapore than in India, and in 2015, the abortion rate was 15.84 per 1000 women (Jacobson and Johnston 2019) in contrast to India’s rate of 47 per 1000 women (Singh et al. 2018), and there has been a steady decline in abortion rates in the country. The maternal mortality rate in Singapore is 10 per 100,000 live births (CIA 2015), which is again significantly lower than India’s 145 per 100,000. Singapore’s sex ratio has been found to be 980 females per 1000 males in 2019 (Ministry of Social and Family Development 2019), which is higher than India’s 930 females per 1000 males (Ministry of Statistics and Program Implementation 2019).

Admittedly, Singapore and India have very different social contexts, particularly in terms of population, female literacy rates, awareness and access to contraception. There is also more social stigma surrounding abortion in India as compared with Singapore. However, as witnessed in Singapore, liberalisation of abortion laws could possibly play a role in reducing the incidence of unsafe abortions in India.

The Way Forward for Abortion Laws in India

Over the past 47 years, a lot has changed in Indian society. The MTP Act needs to be amended to keep pace with these changes, and its clauses must be accordingly re-evaluated in an objective manner. While the MTP Amendment Bill, 2014 may not be the ultimate solution to all the problems related to abortion in the country, it is certainly a preliminary requisite.

This Bill proposes to increase the gestational limit for abortions to 24 weeks, as opposed to the current limit of 20 weeks. In addition to this amendment, legal decisions must be arrived at on a case-to-case basis, in a more individualised manner. Clear guidelines must be laid out in special situations such as rape victims, severe congenital anomalies, underage mothers and possibly women who lack the financial means to raise a child. In these situations, due consideration must be given to the possibility of exempting the woman from any gestational limit to terminate her pregnancy. The final law that emerges must be lucid and must leave no room for misinterpretation, in order to avoid legal procedural delays in the same, as these delays add to the mental distress of the woman.

These decisions must be made in consultation with qualified doctors in the field of obstetrics and gynaecology, who should be included in the legal panel. This will lead to more uniformity in the process, and more educated decision-making. The author firmly believes that late-term abortions are not ethically wrong. The stigma surrounding them must be eliminated so that women can take the final decision to discontinue pregnancies in cases where their continuation causes immense distress. Efforts must also be directed at spreading awareness about safe abortion services and how to access them.

Conclusion

There are myriad ethical issues that arise in the face of late-term abortions. The author believes that importance should be given to the choice of the mother over the potential personhood of the foetus, as the continuation of a distressing pregnancy will harm both their lives. Abortion practices in India are governed by the Medical Termination of Pregnancy Act, 1971 (Ministry of Health and Family Welfare 1971), which may have been considered liberal at the time of its conception. However, with issues like sexual assault increasing in prevalence across the country, there is certainly room for the Act to keep up with modern society and its evils.

There must be room to make exceptions in special situations that warrant them, as for example, sexual assault and congenital anomalies detected late in the antenatal period which can be exempted from any gestational limit for termination.

It is extremely important for a law controlling an issue of such importance to be lucid, leaving no room for doubt. All factors involved, especially ethical, should be taken into account and a modified act with separate provisions for each situation must be brought out. Every aspect of the law must be backed by unquestionable reasoning. When the personal lives of thousands of women are involved, it is indeed a matter with serious implications and must be accordingly dealt with. Since the mother is the ultimate provider for the foetus physically, mentally and financially, she must be deemed fit to make the choice of terminating the pregnancy until governmental provisions can be made to support her in the same, in order to reduce the incidence of unsafe abortions and abortion-related complications.

Compliance with Ethical Standards

Conflict of Interest

The author declares that there is no conflict of interest.

Disclaimer

The views expressed in this paper are personal views and not the views of the institution to which the author is affiliated.