Is my baby normal?’ Asha asked tearfully, her hands clenched tightly around her husband’s arm. I replied that we have run the tests twice and confirmed that her baby has hydrocephalus. I was trying to buy time with technical jargon, hoping she and her husband could compose themselves to receive the next piece of news. Even though it pained me to see the shock and disappointment on their faces, I had no option but to proceed with discussing these facts.

“She was 10. Pregnant. And had fewer rights than her rapist."

Asha’s unborn baby had developed a large head with fluid filling its brain, compressing the developing neural tissue. There was also a cyst on the spinal cord called a meningomyelocele. “Babies with hydrocephalus and meningomyelocele are born alive but will be severely restrained both physically and mentally," I told them. “Sometimes, they are paralysed from the waist down. Treatments and surgeries may help, but often, the outcomes aren’t great."

Asha was a young, middle-class accountant who had been trying for years to conceive a child. She had faithfully kept her prenatal appointments, but because of a family emergency, she wasn’t able to have her sonography done until twenty-three weeks had passed, despite my advice to have it performed earlier.

As I explained the situation to Asha, her expression became stiff. She drew in a deep breath and said slowly but confidently, “I don’t want to carry on with this pregnancy and trouble my baby, Doctor. I want an abortion."

A part of me was hoping I could avoid this part of the conversation. I understood her feelings, but since the pregnancy had gone beyond twenty weeks, I could not legally provide her an abortion at that point. Had we discovered the hydrocephalus three weeks earlier, the situation would have been quite different.

The glint in Asha and her husband’s eyes dimmed further the moment I explained this. They pleaded with me, offered to pay more money, and insisted there had to be another way. I, however, remained firm and politely asked her to try her luck with another doctor if she was desperate, perhaps someone willing to bend the rules and perform what was clearly illegal at the time. As I explained the situation, they decided neither to try another doctor nor to do anything illegal.

“I stood in a courtroom because the clinic had no voice."

She gave birth to a son a few months later. As we had expected, despite our treatment, he was in a near vegetative state with no bowel or bladder control and could do little on his own. This weakened the already unstable financial state of the family. It was painful seeing her child and her family suffer.

All this troubled me deeply. I had certainly been legally right; was I morally correct? Shouldn’t a woman have control over her body? What is the point of diagnosing a problem when you cannot provide a solution? Under the existing law in India, when a foetus is grossly abnormal, the pregnancy is allowed to be terminated as long as it is before twenty weeks. But if the same woman undergoes termination just a few days after twenty weeks, it becomes illegal and criminal. Is it not illogical?

I am an obstetrician and gynaecologist, practising in India since 1996. While studying to become a specialist, I remember reading about the Medical Termination of Pregnancy (MTP) Act, the abortion law in India. As a medical student, I was far too engrossed in the scientific side of it and did not go in-depth about the legal and ethical aspects of abortion. It was only after starting my private practice that I began to see women like Asha and realised the legal fallacies in taking women’s autonomy away from them. In 1999, inspired by these experiences, I decided to study law and learn more about how this system came into being. The more I learnt about laws in India and abroad on women’s health rights, including that of abortion, the clearer it became that a systemic solution needed to be found, including changing the very foundation of what these laws were built on.

Indian laws have their roots in British rule. At this time, the Indian Penal Code was in place and according to sections 312–16 of which, causing the abortion of an unborn foetus amounted to a crime for which the doctor and the woman might both be punished with imprisonment for up to three years. The code is now replaced by the Bharatiya Nyaya Sanhita (BNS) in December 2023, which came into effect on July 1, 2024. While this section did not stop legal abortions, or our women from getting unwanted pregnancies, further exacerbated by our patriarchal society, illiteracy, and the near absence of contraceptive usage. Women thus go to any extent to abort, getting “help" from quacks, touts, and tantrics, or even trying things on themselves. My mother, who became a gynaecologist in 1966, remembers how almost all hospitals at the time had septic wards just to address dreadful injuries and sepsis caused by attempted illegal abortion. Many died miserably due to injuries to their genital organs. Wards like these are still common in countries where abortion is illegal today.

Fortunately, to avoid further damage to the health of women, the Indian Parliament took a bold step in 1971 with the MTP Act, which decriminalised abortion to an extent. It was a landmark change when it was first introduced, giving women a much-needed opportunity to seek safe abortions.

One of the conditions where the legislation allows abortion is a contraceptive failure, for example, but until recently, only married women were allowed to seek an abortion on this ground, with no explanation whatsoever as to why an unmarried woman was not qualified........

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