Why in News? In a very exceptional case, the Supreme Court has allowed a 14-year-old victim of sexual assault to terminate her almost 30-week pregnancy.

What is India’s Law on Abortion? The Medical Termination of Pregnancy Act (MTP Act), which was first enacted in 1971 and amended in 2021, allows the termination of pregnancy. Upto 20 weeks, termination is allowed on the advice of one doctor. In case of a pregnancy of 20-24 weeks, abortion is allowed as an exception (under seven specified categories [minors or sexual assault; women with disabilities; etc]), after two registered medical practitioners have evaluated the right to seek termination.

What After 24 Weeks of Pregnancy? The law requires that a medical board be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality, checked through the test of “foetal viability” (the time after which a foetus can survive outside the womb).

Has the Court Allowed Termination Beyond this Period? Yes, it has, in certain cases. For example, in the recent case, SC noted that the continuation of the pregnancy against the will of the minor may impact negatively on the physical and mental well-being of a minor who is barely 14 years old.

Why is the Test of ‘Foetal Viability’ Criticised in India? The test of “foetal viability” as a benchmark to allow abortion is new in India. It was pegged at 28 weeks/ 7 months (by the US Supreme Court in 1973), which is now with scientific advancement lower at 23-24 weeks (6 months). Therefore, it has been argued that foetal viability is an arbitrary standard.

What are the Legislative Gaps in the MTP Act? The decision to terminate after 20 weeks is shifted to doctors (not the woman)and women approaching the court at the eleventh-hour point to a legislative gap. Also, the law tilts more to the side of the woman’s autonomy than towards the rights of the unborn child.