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India’s 20-Week Abortion Limit Questioned After Birth of Unwanted Baby

After India’s Supreme Court rejected a Mumbai woman’s plea to be granted an abortion beyond the legal cutoff, she gave birth to a severely disabled baby. The case has reignited calls for the adoption of long-proposed changes to this law.

Written by Priyanka Borpujari Published on Read time Approx. 4 minutes
Women who have been pregnant for more than 20 weeks in India are compelled to go through with the birth. AFP/Money Sharma

MUMBAI, India – As she sat in her bed at Mumbai’s KEM Hospital, surrounded by women nursing their babies, 27-year-old Sunita Gupte mulled over her fate and that of her son, born a week earlier. He was in intensive care, and she was deeply concerned about what to do next.

“I’m told his head is very huge and is like a water bubble, and that his limbs are twisted. How do I take him home and care for him?” she said, in tears.

When Sunita (name changed upon request) was 27 weeks pregnant, she learned that her fetus suffered from a rare abnormality called Arnold-Chiari syndrome, which causes an underdeveloped brain and a distorted spine, and which can lead to a wide range of disabilities.

She knew how hard life could be for someone with disabilities: Her younger brother has mental and physical disabilities. And with a combined family income between herself, her husband and mother-in-law of less than 40,000 rupees (about $620) per month, she feared they would not be able to bear the expenses of caring for a severely disabled child.

Sunita wanted to have an abortion, but she wasn’t allowed one. India’s Medical Termination of Pregnancy (MTP) Act deems abortion as a right in the face of any risk to the pregnant woman, but it allows abortions only up to 20 weeks. Only in extreme cases when the mother’s life is in danger is abortion allowed beyond 20 weeks. Abortions carried out beyond that cutoff can lead to prison terms of up to three years.

Abortion laws vary widely from country to country. A handful of countries, including Chile and Malta, ban abortion under any circumstances, while others, like the Netherlands, allow abortions at any point during the pregnancy. In the United States, about half of states mark the cutoff between 24 and 26 weeks, but some go as low as 20 weeks while others have no cutoff at all.

Sunita approached gynecologist Dr. Nikhil Datar, who has helped several women petition the Supreme Court for extensions to the cutoff – successfully in five cases, but unsuccessfully in two, including Sunita’s. Her plea was rejected on March 27 by India’s Supreme Court.

She gave birth to the baby three months later, on July 1. The boy was born with a deformed head and fluid in his brain. He also had a ruptured meningocele: a fluid-filled sac protruding from the spinal column. The hospital’s doctors decided that carrying out surgical interventions would be too risky.

This is not the first case of its kind. In 2008, Datar approached the Supreme Court when 24-weeks-pregnant Niketa Mehta sought an abortion due to a fetal anomaly. That case, too, was rejected by the court, but Mehta lost the baby in a miscarriage.

Since 2008, Datar has found himself helping several women whose pregnancies are past 20 weeks petition the courts. Most such cases involve anomalies that were detected in the fetus after the cutoff mark. Datar said many of them fall off the radar after they are told that they cannot legally terminate their pregnancies.

“When the courts are unable to view the cases from the perspective of the woman and her situation, it pushes her towards illegal and, worse, unsafe abortion practices,” he said.

Indian women in urban slums and rural areas often do not have access to prenatal care before 20 weeks. “Affluent women can fly off to another country where abortion is allowed way past 20 weeks, but the law punishes those women who need the most assistance,” Datar said.

Beyond the cases that make it to the Supreme Court, it is difficult to get a grasp on the number of women who seek abortions after 20 weeks. The Abortion Assessment Project-India, a vast survey undertaken in 2000, estimated that 6.4 million abortions are carried out annually in the country.

But Dr. Suchitra Dalvie, a coordinator for the NGO Asia Safe Abortion Partnership, says it is impossible to get accurate data even on legal abortions, as they often go unregistered due to stigma.

“It can be conservatively assumed that the number of abortions that take place discreetly and often in unsanitary conditions is 10 times the number of legal ones,” she said.

Abortion is a highly sensitive issue in India. The country’s dire track record on female feticide (or fetus killing) led to the enactment of the Pre-Conception and Pre-Natal Diagnostic Techniques (PC-PNDT) Act of 1994, which banned and criminalized finding out the sex of a fetus and aborting it due to its sex.

But Sandhya Srinivasan, consulting editor for the Indian Journal of Medical Ethics, argues that some groups part of the campaign against sex-selective abortion have used anti-abortion language. “The term ‘feticide’ is callously used, which implies that any abortion amounts to murder, and this is exactly what pro-choice campaigners have been fighting against,” the veteran medical journalist said.

Datar feels the Supreme Court has been largely proactive in ensuring that hearings related to abortion cases take place urgently, considering their time sensitivity. What he now wants to see change is the law.

While an amendment to the MTP Act to extend the abortion cutoff to 24 weeks – and to allow terminations at any stage in cases of “substantial fetal abnormalities” – was drafted back in 2014, it has yet to be debated in parliament.

“If our government can demonetize currency notes overnight to curb corruption, then surely amendments to this law can be made more quickly,” Datar said.

“The conversation has to go beyond the possible misuse of law. I am just one gynecologist in Mumbai who sees such cases on a daily basis – I cannot even begin to imagine the magnitude of these cases across the country.”

This article has been updated to add that exceptions are made to the 20-week abortion cutoff when the mother’s life is in danger. It has also been modified to clarify that Sandhya Srinivasan argues that some, not all, groups that are part of the campaign against sex-selective abortion use anti-abortion language.

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