The Supreme Court has admitted a PIL to examine the constitutional validity of certain legal provisions of the 48-year-old Medical Termination of Pregnancy Act, 1971 that allow abortion only to save the woman's life or in case of abnormal fetus. The PIL says these laws violate women's right to health, "free reproductive choice" and "privacy". But where do we stand currently when it comes to abortion in India?
Nineteen-year-old Anamika (name changed) is still coming to terms with the turns her life has taken over the last year. Educated only till middle school in Mumbai, she lives in a dilapidated building in Mulund with her father, who owns a small tea shop and her mother, a homemaker. Her elder sister got married two years ago and now lives in a small town near Pune with her husband, daughter and in-laws.
“Last year, a new family moved close to my house. They moved here from Sangli district in Maharashtra. The son, Ashish, was two years older to me and a peon in an office. He started pursuing me, buying me gifts and telling me he wanted to marry me,” says Anamika. A relationship was in the offing.
Then, she missed her period. When no amount of unripe papayas and green pineapples, taken at her own behest, induced her menses, she knew she was in big trouble. She called up her sister; the latter was livid and accused her of having loose morals and bringing shame to the family. Anamika was reminded that if her parents ever found out about her pregnancy, they would kill her.
Despite the harshness and judgment, her sister took her to a midwife near Pune. A pregnancy was promptly diagnosed and Anamika was asked to keep a mixture of medicinal roots in her vagina for three days.
“I still didn’t get my period. A month and a half later, the midwife gave me a concoction of boiled betel nuts and roasted sesame seeds. She even gave me a ‘massage’, but it was really just her pressing my abdomen so that I miscarry,” says Anamika.
It was really bitter and the whole thing gave me very painful cramps. I couldn’t go to a doctor or tell my parents. I thought of committing suicide a lot over those few months, but I decided to try one last time and called up Ashish.Anamika
Luckily, he was supportive. Within a week, he asked for Anamika’s hand in marriage from her father. By the time they were wedded and the decision to abort the child was abandoned, she had entered the second trimester of her pregnancy.
When Ashish took her to a primary health center for a checkup, it was revealed that the 15-week foetus inside her was missing a heartbeat. In the surgery to remove it that followed, her uterus was damaged.
I just got married but I can never have children again. I often wonder how things would have been if I could have just gone to a doctor when I first missed my period.Anamika
It’s a Data Driven World
Abortion has been legal in India for 47 years now since the Medical Termination of Pregnancy Act (MTP Act) came about in 1971 but it is yet to become a woman’s right. This is absurd simply because abortions are so commonplace. According to a study published last year by Guttmacher and Population Council in The Lancet, a renowned medical journal, 15.6 million abortions took place in India in 2015. That is more than the populations of Belgium, Greece, Sweden, Portugal and Hungary.
Now compare this to the 7 lakh figure the Centre gives for the total number of abortions in India in 2015 in the National Family Health survey (NFHS). The glaring gap between the two studies only highlights the stigma against abortions in the minds of both the woman and the nation.
Safe, legal abortions are India’s best kept secret. The day India is open and honest about giving women the absolute, unfettered right to abort a child is the day I feel we would have made real progress in terms of women’s empowerment and equality.Dr Nozer Sheriar, former secretary general of the Federation of Obstetric & Gynaecological Societies of India (FOGSI)
Barriers to Safe Abortions in India
The MTP Act permits a woman to have an abortion if the doctor believes “in good faith” that “…the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or 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”.
That is, the onus still lies on the woman to prove how it will harm her or the child physically or mentally. Merely not wanting an unwanted pregnancy is not enough.
According to the Act, a woman needs the consent of one medical practitioner in cases of first trimester abortions and two medical practitioners for a second trimester abortion. This is reflective of the general perception that a woman cannot and should not have control over their reproductive future.
Unfortunately, this attitude extends even to medical providers who often ask for spousal or family consent when a woman comes forward asking for an abortion, even though it is not a legal requirement under the MTP Act.
In August 2017, in a landmark judgement, the Supreme Court ruled that all citizens of India have a constitutional right to privacy and that a “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”
But we have a long ways to go as a nation to provide reproductive justice to all women. Copious issues and barriers in access to safe abortions in India remain: shortage of legal and unbiased abortion providers, gestations limits beyond the legal 20 weeks, stigma, provider bias especially for unmarried women and adolescent girls, legal barriers and lack of awareness about the provisions under the MTP Act.
Legal Barriers: The MTP Act
For starters, the MTP Act fails to define terms like “abortion”, “miscarriage”, “termination of pregnancy”, “health”, “substantial risk”, and “seriously handicapped”, making the doctor’s opinion invaluable. Currently, only MBBS doctors (of whom there is a dearth) can provide abortion services. For second trimester abortions, two MBBS doctors’ consent is required which is challenging in rural areas. Then, there’s the missing mention of unmarried women in the clause about terminating a pregnancy due to contraceptive failure since considerable stigma is attached to having a non-marital pregnancy or birth.
Take for instance, the story of Ruchika*, an upcoming home chef and social media influencer based in Bangalore. When she found out she was pregnant, she looked up a gynaecologist on Practo based on the distance between her house and the clinic. Her boyfriend at the time, Arjun, had told her he wanted to reconsider the intensity of the relationship when she had broken the news to him. Nevertheless, he took her to a clinic.
She must have been in her late 40s. She asked me if I was married and whether my parents knew about it. I said no. She then told me that it was because of women like me that parents are scared of letting their girls out in the worldRuchika
She had a standard abortion using pills, done and dusted under three hours. But the guilt still lingers: “There are women dying to have children, and I just went ahead and dropped one.”
However, one of the most problematic parts of the Act remains that it allows abortions only up to 20 weeks of gestation. In recent years there have been many cases of women seeking abortions beyond 20 weeks due to foetal abnormalities that in many cases can be detected only after 20 weeks as well as in cases of rape.
Single women are most vulnerable to this aspect of the law; they are often unequipped to detect pregnancy, unaware of their rights under the MTP Act, lack partner and financial support, and have confidentiality issues that delay seeking of medical help.
All of these force women’s hand into seeking unsafe abortions from informal providers or ‘quacks’ which may result in complications after surgery or worse, death. According to the NFHS study, Almost one in five women, that is, 19% of the women reporting an abortion said that they had complications from the abortion.
In 2014, the Ministry of Health and Family Welfare proposed certain well-thought out amendments to the Act and submitted them to the Prime Minister’s Office (PMO). The amendments included are:
- Expanding the medical abortion provider base to include AYUSH doctors, Auxiliary Nurse Midwives (ANMs), and nurses; and,
- Extending the gestation period to 24 weeks; and,
- Expanding the law to include unmarried women seeking abortions in the case of contraceptive failure; and,
- Reducing the number of medical practitioner opinions from two to one in second trimester abortions.
The goal was to move the law from being “physician-centric” to more “woman centric.” However, three years later, the PMO returned the amendments and reinforced the goal to strengthen the MPT Act. The Amendment Bill has now been revised and is likely to be sent back to the PMO
Legal Barriers: The PCPNDT Act and POCSO Act
Ironically, two well-meaning and necessary laws come in the way of effective implementation of the MTP Act and access to to safe abortion services: the Pre-Conception and Pre-Natal Diagnostic Techniques, 1994 (PCPNDT) Act, and the Protection of Children from Sexual Offenses Act, 2012 (POCSO Act).
It’s been decades since India has been fighting a never-ending battle against foeticide, especially based on gender, thanks to the overwhelming cultural preference for the boy child. The PCPNDT Act was enforced in 1994 for curbing this preference and made sex-determination illegal. However, a lack of awareness and clarity often leads to this Act getting mixed up with the MTP Act, implying that abortion is illegal. At the ground level, officials are stringent with this law, often “clamping down” on registered MTP centres and qualified gynaecologists on the allegation that they provide sex-determination services as well. There is increasing reluctance among doctors in doing abortions beyond 12 weeks, since by then the sex of a child can be determined. This poses a major challenge to women trying to access abortion services, well within the legal gestation period of 20 weeks.
The way to end sex-selective abortions cannot be to end all abortions. Neither does restricting access to abortions reduce abortions. It just reduces safe abortions.Dr Nozer Sheriar
The POCSO Act was written to strengthen the legal protection of children below 18 years from sexual abuse and was enacted in 2002. Under this Act, if any girl under the age of 18 seeks an abortion, the medical provider must file a complaint of sexual assault with the police. This not only assumes that women of and below 18-years-of-age should not be and are not engaging in premarital consensual sex making it taboo, the legal obligation to notify the police has made medical providers hesitant to help out minors who come requesting an abortion.
There is a long list of needs of the hour for India to ensure access to safe abortion services: we need to amend the MTP Act and then strengthen its implementation, make people and authorities and the community aware of the provisions of the act and, review and amend the three Acts and their intersections. At the end of the day, the choice to carry a child to delivery can only belong to the woman since she is the one sharing her life and body with it. It is a personal choice, and despite all of the above writ words, not a legal debate.