Mumbai: Discussions across medical forums in recent weeks have centered around problems with the Medical Termination of Pregnancy (MTP) Act after two court interventions put gynecologists under scrutiny. Senior Mumbai gynecologist Dr. Sudhir Naik asked, "Why are doctors being made scapegoats?" reflecting the anger in medical circles.
Two Cases Highlight Legal Gaps
In one case, an FIR was filed against a gynecologist at Satara Civil Hospital after a failed MTP involving a 16-year-old rape survivor ended in the birth of a live baby who later died without medical attention. In another, the Supreme Court warned AIIMS doctors of contempt proceedings if they did not terminate a 30-week pregnancy of a 15-year-old rape survivor.
Law Prioritizes Medical Approval Over Women's Autonomy
Though India extended the upper limit for termination from 20 to 24 weeks in 2021, doctors and legal experts say the law still rests on a flawed structure that prioritizes medical approval over women's autonomy. The Supreme Court bench in the AIIMS matter flagged the need for amendments. Dipika Jain, professor at Jindal Global Law School, Delhi, said, "There are two things to be done. Decriminalize abortion and allow complete autonomy to women and not their doctors in this matter."
Historical Context of Abortion Laws in India
To understand this, a historical perspective on abortions in India is needed: miscarriages or abortion were criminalized under the Indian Penal Code, with both the woman and her doctor liable for it. Gynecologist Dr. Nikhil Datar, who has long campaigned for extending the legal time limit, said, "MTP is criminalized even under the Bharatiya Nyaya Sanhita, unless it falls within the narrow exception created by the MTP Act."
Then in 1971, the MTP Act came up mainly as an exception to protect doctors. Jain said, "It was decided that the doctor's discretion would help decide on MTP, thereby making MTP a medical model not an autonomy model for the woman." Mumbai lawyer Anubha Rastogi agreed, calling the law "service provider-centric." Under the Act, termination is allowed only for legally recognized reasons and only when doctors form the required opinion. "This effectively turns doctors into gatekeepers," said Rastogi.
Doctors' Reluctance and Legal Ambiguity
Rastogi noted that "the law is, thankfully, not getting into how you terminate the pregnancy. There is a process where you are allowed to do a certain set of things, you should be doing them without any court having to tell you yes or not." The law allows for feticide, a process in which an ultrasound-guided potassium chloride injection is given to the fetus when still in the uterus to end life. "It is in the written guidelines but it's not very clear to me why doctors are asking for the court to permit the process," she added.
Worse for Minors
That gatekeeping becomes most visible in cases involving minor rape survivors. Under current law, termination beyond 24 weeks is restricted to situations involving immediate danger to the woman's life or severe fetal abnormalities. For many minor girls who discover pregnancies late, the only practical route is to move the courts. Dr. Datar said, "A young rape survivor may not be dying physically, but continuing the pregnancy can destroy her life mentally and emotionally." He noted that courts, including the Supreme Court, have permitted late-term abortions in exceptional cases even when the statute itself does not clearly allow them. "Those repeated judicial interventions expose the gap between legal text and reality," he said.
Disability Exceptionalism Questioned
Jain questioned what she described as "disability exceptionalism." Courts have allowed terminations even at 33 weeks in cases of fetal anomaly, showing that late-term procedures are medically possible. "Why," she asked, "should similar access be denied to rape survivors, minors or women facing changed circumstances?" She urged treating abortion as healthcare governed by the pregnant woman's informed choice, pointing to Nepal's law that allows abortion up to 20 weeks without requiring women to justify their reasons. "In India, women are still expected to explain and defend why they do not want to continue a pregnancy."
Why Medical Boards?
While the 2021 amendment expanded gestational limits, some experts say it deepened bureaucracy. Jain said, "Abortions up to 20 weeks require one doctor's opinion; 20 to 24 weeks require two doctors for specified categories; beyond 24 weeks, cases often depend on fetal anomaly or risk to the woman's life, with medical boards playing a decisive role." Dr. Datar explained that medical boards typically include a gynecologist along with specialists from other disciplines. "The gynecologist is the only person legally authorized and clinically trained to perform or certify an MTP," Dr. Datar said. "Yet specialists who may never have performed even one termination can collectively outvote the gynecologist."
Confusing Terminology
Dr. Datar also said the law remains confusing in its very language. "India borrowed ideas from Britain's Abortion Act of 1967 but avoided using the word 'abortion' in its own law. Instead, the law uses the term Medical Termination of Pregnancy without clearly explaining its purpose," he said. He argued that the definition is so incoherent it can technically cover removal of a dead embryo, surgery for ectopic pregnancy or even an emergency caesarean section, while leaving deliberate fetal reduction in multifetal pregnancies in an ambiguous zone.
