In 1971, techniques for termination were primitive and risky. Today, doctors can safely induce the process of abortion mimicking natural delivery at any stage. Yet the doctor has no choice but to refuse such an abortion if the pregnancy has crossed the arbitrary cutoff of 20 weeks. Carrying it out is a criminal offence for which the woman and the doctor both could be jailed. There is a chance that such a woman may undergo illegal abortion in the hands of a quack, risking her own life.

I challenged this illogical provision in 2008 by filing a case, Nikhil Datar vs Government of India. Since this milestone case, i have helped more than 90 women seek justice. In these cases the courts set a committee of doctors from government hospitals. The medical knowledge that late abortion is safe, seriousness of the fetal abnormality along with the helplessness of the woman convinced the committees to give reports in favour of termination.

The judges took bold decisions, read beyond the letter of the law and allowed these late abortions. Despite this, courts can only take a case by case approach. Thus the systemic problem continues to exist unless Parliament amends the MTP Act. Unfortunately the Centre and state governments have been passive spectators for more than a decade now.

All these cases where courts allowed termination of pregnancy beyond 20 weeks were successfully and safely handled. Most of them were done in government hospitals. In most of these cases, the process of abortion was induced using medications and the women aborted through the vaginal route (like normal delivery). However some ethical questions have come up. Some of the fetuses were born with signs of life especially when the gestation was beyond 24 weeks. This led to a confusing situation.

In a naturally occurring severely premature birth, the parents are counselled about poor prognosis. If parents wish and consent, comfort care or palliative care is offered. But what does one do in a case of termination of pregnancy?

In order to avoid these complex situations, doctors in the UK and other Western countries carry out a medical procedure that stops the beating heart before the abortion is induced. Indian doctors do the same procedure, albeit before 20 weeks. When courts allow late terminations, it is unclear if doctors can stop the beating heart before termination is conducted.

Although the judiciary has been very sensitive and swift in disposing such cases, it still amounts to delay. The woman has to go through a lot of hardships to reach the high court. The cases that reach courts are only the tip of the iceberg, the problem is a lot larger in magnitude. There will be thousands of such women in the country who have no scope of even reaching the court for legal remedy.

Thus the only solution to the problem is amending the MTP Act through Parliament. The MTP Act needs to be amended immediately in line with modern medical advances and international ethical principles. The archaic and arbitrary cutoff of 20 weeks needs to be removed.

Having said that the safety of women and possibility of abuse of law also needs to be kept in mind. The state should identify a separate cadre of healthcare facilities to provide safe terminations after 20 weeks of pregnancy. There is an immediate need to clarify the legal status of an unborn fetus when termination is being considered. Moreover, the state needs to create elaborate working guidelines for doctors while they undertake such terminations. Meanwhile in the short term, the state can pass an ordinance with immediate effect to bring about the said changes.

Unless the law is amended keeping pace with modern medicine, the dignity and welfare of women who have resorted to such a desperate measure to safeguard their and their unborn fetuses’ quality of life cannot be upheld.