The concept of ‘foetal viability’ as a determinant for abortion is relatively new in India.
Originating from the 1973 US Supreme Court decision in ‘Roe v Wade,’ it established abortion rights up to the point of foetal viability, which, due to scientific advancements, is now approximately 23-24 weeks.
Criticisms suggest that foetal viability is an arbitrary standard, and there is concern that India’s abortion law shifts the decision-making power to doctors rather than the women involved.
India’s Law on Abortion:
- Governed by the Medical Termination of Pregnancy Act (MTP Act), which allows termination in three stages.
- Abortion up to 20 weeks is permitted based on the advice of one doctor.
- Between 20-24 weeks, termination requires the agreement of two registered medical practitioners and falls under specific categories such as statutory rape, sexual assault, disabilities, or changes in marital status.
- After 24 weeks, a medical board in approved facilities is mandated to decide on termination, primarily in cases of substantial foetal abnormalities.
- In 2021, India extended the upper gestational limit for legal abortion to 24 weeks for vulnerable women, entirely removing restrictions for cases of substantial foetal abnormalities diagnosed by a medical board.
- Courts have allowed terminations beyond 26 weeks in special circumstances, acknowledging societal changes and the need for a flexible legal framework.
- Notable cases include a rape survivor at 27 weeks and a consensual relationship at 24 weeks.
- In ‘Bhatou Boro v. State of Assam’ (2017), Gauhati High Court overruled a medical board’s refusal for the termination of a minor rape survivor beyond 26 weeks.
- Recent observations by the Chief Justice-led Bench emphasize the delicate balance between a woman’s rights and the consideration of the unborn child’s rights.
WHO guidelines recommend fully decriminalizing abortion, removing grounds-based regulations and gestational limits to ensure equal abortion care.
Grounds-based restrictions and gestational limits are viewed as medically unnecessary policy barriers by the WHO.
The evolving landscape of India’s abortion laws reflects a dynamic interaction between legal frameworks, societal changes, and medical advancements.