Legal Abortion Limit Raised up to 24 Weeks of Gestation for Substantial Foetal Anomalies or for Rape Victims: a Welcome Step for Women and Health Providers in India

Dear Editor,

Sasi (2019) commented that late-term abortions (after 20 weeks of gestation) are an issue of immense debate in India, where the Medical Termination of Pregnancy (MTP) Act, 1971 permits abortions only up to 20 weeks. To explain the changed scenario in India in 2021, we write as members of the “Permanent Medical Board for Abortion beyond 20 Weeks of Gestation”, of the Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh, India. This board was constituted by the Government of India in 2017 in each state and union territory in premier tertiary institutes to assess cases who approach the Honourable High Court for permission for abortion after the legal limit of 20 weeks of gestation. The common reasons for seeking abortion were foetal malformations, pregnancy resulting from sexual assault and, occasionally, women with medical conditions needing urgent treatment potentially harmful to the foetus. The board has members from various specialities and super-specialities in PGIMER. Its task is time-bound with evaluation by medical, obstetric, paediatric, psychiatry and radiology teams, discussion of the board members and drafting of the report. Whenever advised, we opined that the women have the abortion in PGIMER, so that it is safely carried out and we may also perform further tests on the foetus or mother (e.g. genetic tests if required) for a future pregnancy.

We welcome the “Medical Termination of Pregnancy (Amendment) Act, 2021” published in the Gazette of India on 25 March 2021. This amendment of the previous Medical Termination of Pregnancy MTP Act, 1971 (principal act) places India among the few nations, which provide greater autonomy and safety to women requesting an abortion.

The amendment in sub-section 2 of section 3 of the principal act states that a pregnancy up to 20 weeks of gestation may be terminated by a single registered medical practitioner (clause a), and a pregnancy between 20 and 24 weeks by at least two registered medical practitioners (clause b) (Medical Termination of Pregnancy (Amendment) Act 2021; Medical Termination of Pregnancy Act 1971). The doctors must be of the opinion that either (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. It is pertinent to point out that under clause a, where a pregnancy occurs due to failure of contraception, the anguish caused by it may be presumed to constitute a grave injury to the mental health of the pregnant woman. Hence, such a pregnancy may be terminated up to 20 weeks of gestation only but not beyond that. For the purposes of clauses a and b, where any pregnancy is caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman and such a pregnancy may be terminated up to 24 weeks of gestation.

Another notable change from the previous act is that instead of failure of contraceptive device used by “a married woman or her husband”, the amendment mentions “any woman or her partner” which implies that live-in adult couples may be benefitted by this act.

The amendment further mentions that provisions of sub-section 2 relating to the length of the pregnancy shall not apply where such termination is necessitated by the diagnosis of a substantial foetal abnormality and the case has been reviewed by the medical board. Every state government or union territory shall constitute a medical board for the purposes of this act to carry out the functions prescribed by rules made under this act. Thus, this amendment enables the medical board to advise for MTP in case of substantial foetal abnormalities even beyond 24 weeks of gestation. This will provide relief to women when substantial foetal malformations are diagnosed late in pregnancy, like hydrocephalus, or a genetic disorder where report of the foetal sample may be available after the legal limit of MTP.

The onus to utilize this act in its true spirit rests with obstetricians and gynaecologists. The concurrence of at least two registered medical practitioners is required for MTP between 20 and 24 weeks of gestation which is permissible for two situations only: substantial foetal abnormalities or for pregnancy resulting from rape, both of which can be documented objectively by sonography or genetic reports and legal proceedings of a rape victim. Furthermore, a designated medical board may intervene if substantial foetal abnormalities are diagnosed even beyond 24 weeks of gestation. This amendment does not allow MTP beyond 20 weeks if pregnancy results from failure of contraception. This act will save many women from the ordeal of filing a writ petition, appearing before a medical board and then obtaining a decision from the Honourable Court for MTP. Though carried out speedily, the process takes 4 to 5 working days which further increases the gestation and prolongs the agony for women (Raymond and Grimes 2012; Bartlett et al. 2004).

Finally, we would like to acknowledge some limitations of this new amendment. Firstly, it re-enforces the power of the medical profession over the autonomy of women. However, that may be a prudent step as unsupervised abortions especially at advanced gestation are associated with considerable morbidity and are best carried out in hospitals with facilities and personnel to handle any untoward events (Raymond and Grimes 2012; Bartlett et al. 2004). Secondly, in the case of rape victims, legal proceedings and evidence may still be required. However, an MTP may be carried out without delay or waiting for legal orders, with a precaution to preserve foetal DNA for future legal proceedings. Thirdly, the issue about what constitutes a “serious physical or mental abnormality” is not always clear. For this purpose, the opinion of the members of the medical board may be obtained, where team members from various specialities can review literature and collectively reach a decision. In case of a potentially “treatable foetal condition”, the woman can be guided about centres where treatment is available, the prognosis and outcome. Such guidance may not be freely available in a developing country like India and the medical board may involve more specialists, e.g. neonatologist, foetal medicine expert, geneticists and paediatric surgeons for specific cases whenever required. Thus, documentation of the legally permissible indication for an MTP by abortion providers will help to utilize the benefits of this amendment for women in India.

Declarations

Conflict of Interest

The authors declare no competing interests.