SC to examine fundamental rights violations resulting from India’s outdated MTP Act

On 21 April 2014, the Supreme Court ordered the Union of India and the State of Maharashtra to respond to fundamental rights violations resulting from implementation of The Medical Termination of Pregnancy Act (1971). A Writ Petition filed by the Human Rights Law Network (HRLN) on behalf of Mrs. X and Mrs. Y argues that the outdated and arbitrary 20-week limit on medical termination of pregnancy violates women’s fundamental rights to life, health, dignity, and equality. At her first antenatal checkup, doctors told Mrs. X that her fetus had severe abnormalities and would not survive more than a few hours after delivery. Mrs. X was 26 weeks pregnant and therefore could not legally obtain a medical termination of pregnancy under the MTP Act. Mrs. X was forced to continue the pregnancy, visit the hospital regularly, and participate in social events to celebrate the birth of her child, all while carrying a fetus that she knew could never survive. After three days of excruciating labor pains, Mrs. X delivered a baby that ultimately died less than three hours later. In her affidavit Mrs. X states, “The whole process was extremely painful. In normal circumstances a mother goes through all the discomfort just for the joy of giving birth to the baby. However in my case there was no joy as I was aware of the poor outcome of the baby. All this could have been avoided if my pregnancy was terminated in time.” In the 19th week of her pregnancy, doctors told Mrs. Y that her fetus may have had a congenital malformation characterized by partial absence of brain tissue. Additional test results would not be available until after the 20th week of pregnancy. Under the limits imposed by the Medical Termination of Pregnancy Act, Mrs. Y was forced to make the excruciating decision to terminate her pregnancy without a full understanding of the medical facts. Out of the 26 million births that occur in India every year, approximately 2-3% of the fetuses have a severe congenital or chromosomal abnormality. With new technology, many abnormalities can be detected only after 20 weeks. India’s MTP Act only allows termination post-20 weeks to save the life of the pregnant woman. Most countries with legal abortion allow termination post 20 weeks in the case of severe fetal abnormalities or to protect the mental or physical health of the pregnant woman. For years, the National Commission for Women, Federation of Obstetric and the Gynecological Societies of India (FOGSI), and prominent doctors have advocated for amendments to the MTP Act that would ensure protections of women’s mental and physical health throughout their pregnancies. Without such an exception to ensure the health of pregnant women, the MTP Act violates fundamental and human rights guaranteed by the Constitution of India and international law. Writ Petition Mrs. X & Mrs. Y vs. Union of India & Anr. (WP (C) 308/2014) will be heard in July after the Court vacation.