High Courts across the nation are currently witnessing a substantial increase in abortion cases, revealed a legal report on September 22.

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In 'Assessing the Judiciary's Role in Access to Safe Abortion- II' report by Pratigya campaign, cases seeking permission of termination of pregnancy from the High Courts in India from May 2019 to August were analysed. There were total 243 cases filed across 14 high courts and one appeal before the Supreme Court. In 84 percent of the cases, permissions were given to terminate the pregnancy.

About 74 percent of the total cases were filed post the 20-week gestation period, 23 percent of the total cases were filed within the 20-week gestation period and should not have gone to the courts at all. Out of 74 percent cases (filed after 20 weeks cut off) 29 percent cases were related to rape or sexual abuse, 42 percent related to foetal anomalies; and out of 23 percent cases (filed even before 20 weeks) 18 percent cases were related to sexual abuse or rape and 6 percent of foetal anomaly.

Commenting on the legal aspect in India and the study findings, the Pratigya Campaign Advisory Group Member and author of the report said, "The increasing number of cases only indicate to the fact that access to safe and legal abortion services in this country still leaves a lot to be desired." She added, "It is imperative that any change in law takes note of these increasing trends and moves towards a rights based, inclusive and accessible legislation on abortion. Any new law or amendment cannot be based on third party authorisation like the medical boards and has to be respectful of a decision that involves the registered service provider and the pregnant person."

Speaking at the launch of the report, the Campaign Advisory Group member, Pratigya Campaign said, "The fact that even women and girls with gestation below 20 weeks have had to go to courts is distressing. The MTP Act allows termination of a pregnancy upto 20 weeks. A large number of the below 20 weeks cases are of survivors of sexual abuse and this only increases their trauma." During the lockdown, access to abortion became even more difficult although there was some respite once the Ministry of Health and Family Welfare declared access to abortion as an essential service. During the lockdown 112 cases were heard at various high courts; and 62 were from Bombay High Court.

The report emphasises on how crucial it is for the law to adapt in accordance to the changing times. The MTP Amendment Bill 2020, is awaiting a nod from the Rajya Sabha and a few changes have been recommended by civil society organisations, which if accepted would make the Act progressive and rights based. It is imperative that access to abortion becomes a legal right for women at least in the first trimester. It is also necessary that the opinion of the doctor, that the pregnant person is consulting, should be considered as primary and the only one required.

The setting up of medical boards which has been done by the Courts while dealing with cases of this nature has only created further obstacles for pregnant persons in accessing safe and legal abortion. "Even if the MTP Amendment Bill 2020 is passed in the current form, the number of cases approaching the courts is not likely to reduce. Therefore, to avoid this, the proposed amendment to increase the gestation limit from 20-24 weeks' should be extended to all pregnant persons who need to terminate a pregnancy, instead of being restricted to only to certain categories of women as defined in the MTP Rules. Similarly, the upper gestational limit proposed for fetal anomalies' should be extended to survivors of sexual abuse or rape. Forcing a person to carry a pregnancy out of rape to term is a violation of her right to life and dignity," the Campaign Advisory Group member, Pratigya Campaign added.

Adding to this, the Pratigya Campaign Advisory Group Member and author of the report said, "Currently abortion is a conditional right and is available only based on the opinion of the doctor. Sixty-six countries around the world including Canada, Nepal, Netherlands, Sweden, South Africa and Vietnam allow abortion at will of the pregnant person for up to 12 or more weeks of gestation." She said that first trimester abortions should be allowed as per request or decision of the pregnant person and it should become a legal right. "I would also like to add that medical boards should not be constituted and the decision to terminate a pregnancy should be solely between a pregnant person and the provider. The number of specialist doctors to constitute such boards is limited in many districts and smaller towns. Constituting Medical boards at all levels would be an operational nightmare. Medical boards will further add to delays and complicate access to abortion, apart from putting unnecessary burden on an already weak health system".