Mumbai: Need for a rethink over MTP Act of 20-week cap on abortion

Mumbai: There has been a rise in the number cases wherein women are knocking on the doors of the Supreme Court seeking permission to abort their foetus, which are mostly older than 20 weeks. The sudden rise in women approaching courts to abort their child at the neo-natal stage, has also resulted in an afresh demand seeking amendment of the Medical Termination of Pregnancy (MTP) Act.

Legal experts, activists and even citizens seek a modification of the MTP act especially in terms of the rigid provision that prohibits abortion, once the foetus has attained 20 weeks.

In other words, no woman is allowed to abort her foetus if it is more than 20 weeks, unless there is a green signal from medical experts. Since, this ‘rigid’ act is still in force and the fact that the High Courts have no inherent powers to issue any directions in the favour of “natural justice for the public at large”, women have no other option but to move the apex court invoking its discretionary powers and seek permission to abort their foetus. This has somehow contributed to the ever-rising number of litigations in the courts.

Looking at the current scenario, there has been a renewed demand to amend the act. Similar was the view of Justice Vidyasagar Kanade, who recently retired from the Bombay High Court after serving the judiciary for nearly 16 years. According to Justice Kanade, the legilature must have a relook into the MTP act and come up with some pragmatic amendments especially regaridng the 20 weeks cap.

In an exclusive chat with the Free Press Journal, Justice Kanade said, “This Act was brought into force to ensure that illegal abortions are not carried. I believe that the makers of the act did not consider the situations of rape victims or the tender age mothers. These aspects were not there before the legislature then as that time (in 90’s) there were no rampant rapes or trafficking cases.”

“It is unfortunate that there are no exceptions carved out in the act and rather there is a blanket ban, which is nothing but waste. It is also unfortunate to see women suffering in such a manner and still they have no other option but to await for a nod from the court,” Justice Kanade added. The former judge also recalled the case of the Bengaluru-based women, who died in Ireland after her plea to abort the foetus was rejected.

Justice Kanade said, “There have been cases where specific events have brought this question (of removing the 20 weeks cap) before the parliament and certain amendments were suggested but it seems the same were not considered. I think that we need to have a relook into this issue especially after considering the current scenario as these (abortion) cases cannot be seen isolated since they are a result of rapes trafficking etc. The legislature must carve out certain exceptions and also rethink over the 20 weeks limit.”

Justice Kanade also pointed out that if some positive modifications are made in the MTP Act then much time of the courts would be saved. He also highlighted the fact that judges are not “experts” in medical faculty and that they only rely on the medical reports.  Accordingly, Justice Kanade has said that the legislature must take help from experts in this field.

“Another major problem here is that even the judges are not expert in medical faculty so the legislature will have to consult experts in the field of gynecology and paediatrics. The legislature must consult experts from all over the world before finalising its amendments. Touching another most important and usual argument opposing abortion, Justice Kanade pointed out that it is often contended citing “ethics” that the foetus cannot be deprived of its right to life. Justice Kanade said, “This argument is done even without considering the extent of disability or retardeness or deformity in the foetus.”

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