Last summer, a pregnant 14-year-old rape survivor went to the Supreme Court of India to fight for a legal, medically necessary abortion. And just this month, another pregnant woman, Miss X, who requested a medically necessary abortion after being diagnosed with a fatal fetal impairment, also made her case in court.
Fortunately, both women received the treatment they needed, but doctors should have been able to provide these services immediately – not wait for courts to give the women permission to make their own personal healthcare decisions.
Women and girls are entitled to autonomy over their reproductive health and lives. Yet India’s abortion law subjects them to unnecessary and harmful delays instead of ensuring they have timely access to the services they need.
Although India’s Medical Termination of Pregnancy Act, 1971 allows safe abortion on broad grounds during the first 20 weeks of pregnancy, the law authorizes the procedure beyond this deadline only when it is “immediately necessary” to save the life of a pregnant woman – excluding injury to the woman’s physical or mental health, grave fetal impairments and pregnancies resulting from rape or incest. Decades after this law was enacted, over half of the estimated 6.4 million abortions that take place each year remain unsafe due to inadequately equipped facilities and lack of access to skilled providers. The arbitrary timeframe for accessing these services only exacerbates the issue, creating further obstacles for women.
Forcing a woman or girl to carry an unwanted pregnancy to term is a violation of her most basic human rights, and any law, policy or practice that has this kind of effect must be abolished. India’s abortion law must once and for all be amended and safeguards created to ensure women and girls have prompt access to safe abortion services.
Respected international human rights bodies have made it abundantly clear that states must ensure access to legal abortion services, at a minimum, in cases of rape, incest, fatal fetal impairments and when the health and life of the pregnant woman is at risk.
In 2011, the United Nations Committee on the Elimination of Discrimination Against Women issued a groundbreaking ruling demanding that the Peruvian government protect women’s health and human rights by changing its abortion laws and ensuring women’s access to legal abortion services. This ruling stemmed from the case of L.C., who at the age of 13 became pregnant after being raped. She attempted suicide and suffered a crippling spinal injury that required immediate surgery. Despite Peruvian laws permitting abortion when a woman’s health or life is at risk, doctors refused to operate on L.C. on the pretext that it could pose a threat to her pregnancy. L.C. ultimately miscarried, and the surgery came too late – leaving her quadriplegic.
And this June, the U.N. Human Rights Committee ruled that Ireland’s restrictive abortion laws subjected Amanda Mellet to “cruel, inhuman and degrading treatment” when she was denied an abortion. In 2011, Ms. Mellet learned her pregnancy involved a fatal fetal impairment and, not wanting to continue with the pregnancy, asked her doctors for an abortion. However, because Ireland outlaws abortion in almost all circumstances, she had to travel to the U.K. to end the pregnancy.
The decisions in these cases underscore how critical it is that governments ensure women’s reproductive rights and put women’s decisions first. No woman or girl should ever lose her human rights when she becomes pregnant. Her unique ability to become pregnant cannot be used against her, to restrict or suppress her basic rights, based on stereotypes about motherhood and judgmental attitudes toward abortion.
Based on human rights treaties and its own constitution, the government of India must protect women’s and girls’ rights to life, health, equality and non-discrimination, and freedom from cruel, inhuman and degrading treatment if they decide to terminate a pregnancy. In the cases of the 14-year-old rape survivor and Miss X in India, the Supreme Court has affirmed a woman’s right to make the final decision about her pregnancy when faced with significant physical and emotional trauma stemming from rape or a fatal fetal impairment.
But how many more pregnant women and girls will have to head to court before the Indian government amends the abortion law?
The government must lift the 20-week limit for abortions so that women and girls who are unable to access timely, safe abortion services or who face unexpected complications are not compelled to undergo a lengthy process of petitioning a court for permission, which results only in further delays and can expose women to further harm.
Above all, a woman should be able to decide for herself whether she will continue with a pregnancy and her decision must take precedence over all other considerations, including the views of third parties and abortion politics. The Indian government must amend its abortion laws so that women and girls can live with dignity and, in no circumstance, be held hostage to an unwanted or unviable pregnancy.
The views expressed in this article belong to the author and do not necessarily reflect those of Women & Girls Hub.