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 On August 4, 2008, Justices Khandeparkar and Amjad Sayed pronounced the judgment that sealed Niketa’s choice to abort her 25-week-old foetus. The judgment triggered immediate debate — pro-choice versus pro-life, the right of the mother versus the right of her unborn child, the benefit of new diagnostic techniques versus the right to life guaranteed by the Constitution. But will Niketa’s dilemma serve as the trigger for amending the Medical Termination of Pregnancy Act?

Section 3 (2)(a) of the act permits abortion up to twelve weeks of pregnancy under the certification of one medical practitioner. Section 3 (2) (b) allows abortion between twelve weeks up to twenty weeks, if two medical practitioners certify in good faith that the pregnancy poses (i) a threat to the woman’s life or (ii) there is substantial risk that if the child was born it would suffer from such physical or mental abnormalities as to seriously handicap it. Niketa had sought an exemption from the 20 weeks limit from the court.

Consequently, the court sought an opinion in context to the state of the health of the foetus from a government hospital. Relying on the expert medical opinion submitted by the dean of JJ hospital, the court concluded that in the absence of a categorical assertion that, if born, the baby would suffer from such serious physical or mental abnormalities as to seriously handicap its life, it declined to waive the limit of 20 weeks in Niketa’s favour. Niketa’s petition was rejected.

Later the dean apparently admitted that the report submitted to the court contained a “typographical error”. We can only speculate whether the absence of the typographical error which changed the phrase “fair chance” to “least chance” would have, in fact, altered the course of Niketa and her foetus’ life. Would it have caused the high court to exercise its extraordinary jurisdiction in support of Niketa’s choice? These are imponderable questions.

Inevitably Niketa’s choice has revived memory of the controversial and landmark decision by the US. Supreme Court in the Roe v. Wade case. According to that decision, most laws against abortion in the US violated the constitutional right to privacy. The effect was to overturn all state and federal laws restricting abortion that were inconsistent with the Roe decision.

The central holding of Roe was that abortions are permissible for any reason a woman chooses, up until the “point at which the foetus becomes ‘viable’, that is potentially able to live outside the woman’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks), but may occur earlier at even 24 weeks. Further, the court held that abortion after the viability must be available when needed to protect the woman’s health, which was broadly defined by the court in the companion case Doe v. Bolton.

So it is important to understand two critical issues arising out of Niketa’s choice: (i) the meaning of late-term abortion; and (ii) the fact that India’s abortion law is at par with liberal abortion laws in other countries around the world.

A late-term abortion often refers to an induced abortion procedure that occurs after 20th week of gestation. However, the exact point when a pregnancy becomes late-term is not clearly defined. Some sources define an abortion after 12 completed weeks’ gestation as “late”, while others define an abortion after 16 weeks as “late”. In fact, three articles published in 1998 in the same issue of the Journal of the American Association could not agree on the definition.

Second, currently, among the 152 most populous countries, 54 either banned abortion entirely or permitted it only to save the life of the pregnant woman. In contrast, 44 of those countries generally banned late-term abortions after a particular gestational period: 12 weeks ( Cuba, Denmark, France, Greece, Norway, Russia, South Africa); 13 weeks (Italy); 14 weeks (Austria, Belgium, Germany); 18 weeks (Sweden); 20 weeks (India); viability (US and Netherlands); and 24 weeks (UK and Singapore). Equally, countries recognize the need to have legal provisions to cater to conditions that may be threatening to the life of the woman or health of the foetus after 24 weeks of gestation.

For example, France allows for a “therapeutic” abortion” to be authorised by two physicians not only if continuation of pregnancy would seriously endanger the health of the woman, but also if it is to be expected that the future child will suffer from a particularly severe abnormality or disease which is considered incurable. There is no limit in terms of gestational age.

England has law on abortion for foetal abnormality as well as professional guidelines on the subject. The Human Fertilisation and Embryology Act 1990 requires two medical practitioners to certify that a pregnancy can be terminated at any gestation if...”there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. It is required for the practitioners to provide a full statement of the medical condition of the foetus and complete a still birth certificate. Interestingly, in May 2008, Parliament voted to maintain status quo on the question of whether to decrease the abortion limit to 12 weeks of pregnancy from the present 24 weeks or increase it back to the pre-1990 limit of 28 weeks.

Let us use this opportunity to make MTPA responsive to advances in neo-natal medicine by (i) extending the period for abortion from 12 weeks of gestation to at least 24 weeks; and (ii) by ensuring a legal mechanism to deal with exceptional circumstances arising beyond the prescribed limit. Let us empower ourselves to take advantage of modern diagnostic techniques within the four corners of law.

Ranjana Kaul is a partner at Dua Associates. The opinion expressed is personal