When will abortion become a right for every pregnant person in India?

The 2021 amendment to the Medical Termination of Pregnancy Act fails on two very important counts: in making abortion a right, and in actually granting access to abortion

June 30, 2022 by Sheerene Mohamed

There is not as much hubbub surrounding the subject of abortion in India as in the United States or other Western nations; we have often been hailed for having a progressive abortion law, the Medical Termination of Pregnancy Act, 1971 (MTP Act). That does not mean that India’s abortion laws are without reproach, having pointedly left out the word “abortion” in favor of the more innocuous “medical termination of pregnancy”.

The recently amended MTP Act was passed in 1971 to loosen the rigidity of Section 312 of the Indian Penal Code. Section 312 criminalized abortion caused by any person, including the pregnant woman herself. To alleviate this concern, the MTP Act carves out an exception to Section 312, but it still only allows abortion in specific circumstances, and requires the approval of registered medical practitioners to have an abortion. It does not permit abortion at the behest of the pregnant person, that is, a pregnant person cannot demand an abortion as a matter of right. The 1971 Act did not take a rights-based approach to abortion, and the 2021 Amendment is no different.

Reproductive rights activists, doctors and lawyers have consistently pointed out significant shortcomings in the 1971 Act, yet the Indian government saw fit to amend the MTP Act without any consultation with the relevant stakeholders. This costly mistake has resulted in making abortion harder to access for Indian mothers. It must be noted that lack of access to abortions leads to unsafe or do-it-yourself abortions, causing medical infections, permanent trauma, and in some cases, even death to the pregnant person.

The most widely publicized provision of the 2021 Amendment Act, is that of increasing the time for termination of pregnancy for special cases of women, which includes minors, victims of rape or incest, those having fetal abnormalities and curiously, those who have had a change in marital status post-pregnancy. For this group of persons, the period after which pregnancy can be terminated has been increased from 20 weeks to 24 weeks. This extension was made in part since fetal abnormalities are often detected only after the twentieth week of pregnancy, brought into focus by Dr. Nikhil Datar’s case in the Supreme Court. Unfortunately, this extension only places a band-aid on a bullet wound. There are several other more pressing problems – ideological and practical – with the MTP Act, which the government has failed to effectively correct.

Amendment reflects heteronormative, patriarchal mindset 

The 2021 Amendment Act amended the use of the term “married woman” to “woman”, presumably to shed the earlier instituted policy that it would permit only married women to access abortions. The legislature could have made use of this chance to amend its use of “pregnant woman” to the more LGBTQI+ inclusive language of “pregnant person”, following the Supreme Court’s NALSA judgment of 2014, and other trans-positive cases. It still operates from a heteronormative standpoint.

Even the change from “married woman” to “woman” fails to give a clear picture of the amendment’s impact. This change does now permit single women to abort their child within the category of 20 weeks, at least. However, among the permitted categories for termination of pregnancy from 20 to 24 weeks, “change in marital status” has been included. By doing this, the MTP Act still creates a classification between married and unmarried women. Stepping into the shoes of the legislature, the rationale given is that a woman may not be able to support her unborn child in cases of divorce or the death of their husband.

But then – what of single women? A woman who becomes pregnant through her partner or even casual sex cannot avail this provision, whereas a woman who cannot support her child due to divorce or death of her husband can. The same logic applies – a single woman is just as unlikely to have support for her unborn child, and if anything, faces the additional stigma of having a child out of wedlock. These nuances contradict the women-friendly angle portrayed by the government, showing that there is still a patriarchal cloud over abortion in India or, at the very least, that the amendment has been passed without sufficient deliberation.

Medical Boards obstruct maternal health

The latest amendment has also brought into law a Medical Board which will decide whether or not to permit abortion post 24 weeks in cases of substantial fetal abnormalities. This has only made the process more complicated and more difficult for pregnant persons to get the help they need in a timely fashion. Legalizing abortion is not sufficient to promote maternal health; it should also be accessible, affordable and of good quality. Therefore, in addition to removing barriers to access, the State should refrain from imposing additional barriers.

In that aspect, the 2021 Act fails miserably. The introduction of the Medical Board itself is curious in the context of the MTP Act. Since the earlier MTP Act did not have any redressal mechanism if the time period was exceeded, courts have, in practice, instituted medical boards to advise them in special cases as to whether it would be wise to terminate the pregnancy, outside the boundaries of the Act. This inclusion will almost certainly cause delay in deciding on abortion, and leave the pregnant person’s mental and physical health at the mercy of the Board.

The legislature in 1969 itself took notice of the fact that a medical board would only take longer to come to these decisions, and therefore left it out of the original MTP Act. In this regard, it drew upon the experience of medical boards in Scandinavian countries, where delays of up to two months were caused by the medical board. The discussion of the legislature in 1969, while formulating the bill, noted:

“The Bill takes into consideration the fact that in case a very complex machinery for certification of cases fit for termination of pregnancy is set up, then the very purpose of timely termination would be defeated… In order to obviate such unnecessary delays, the medical practitioners in our country could under this Bill, upon the satisfaction of the case history, etc. perform the abortion within 12 weeks, which is subject to special safeguards, but not over 20 weeks before a medical practitioner can undertake termination. He has to have the concurrence of another medical practitioner and both of them would be jointly responsible for the termination.”

However, the current parliament has passed this provision without sufficient justification or infrastructure, leaving it up to each state to constitute the Board. The amendment also does not have any recourse for a person who has exceeded the time limit or has been forced to exceed the time limit due to a lack of decision-making on the part of the Medical Board.

The new Medical Boards require a gynecologist, a sonologist and a pediatrician, and whoever else the government feels is appropriate, to collectively grant or deny abortions. Allowing a sonologist or a pediatrician (whose opinion on deciding to terminate is likely to be irrelevant) to decide whether an abortion should happen, but not allowing the pregnant persons themselves to decide whether to go ahead with having a child with disabilities, reflects the still paternalistic attitude of the state towards a pregnant person’s right to bodily autonomy. Organisations like the World Health Organization have specifically recognized Medical Boards as a barrier to access, and urged states to remove these barriers, stating that such structures burden poor women, adolescents, those with little education, and those subjected to, or at risk of, domestic conflict and violence, creating inequality in access.

Other barriers to access 

The 2021 amendment has been passed to promote “maternal health”, yet it does little to achieve that ideal. The amended Rules insert a provision that only a person who has trained for three months in obstetrics or gynaecology, or has “independently performed ten cases of pregnancy termination by medical methods of abortion under the supervision of a Registered Medical Practitioner in a hospital established or maintained, or a training institute approved for this purpose, by the Government”, qualifies as a “registered medical practitioner” allowed to conduct abortions up to nine weeks of gestation period. In an ideal world, having more experienced physicians is always better. But by adding additional requirements for who may conduct the abortion and certification of the place where the abortion is to happen, the government has increased the difficulty in access in a country where doctors, much those less specialised in gynecology, are scant. There is a shortage of almost 80% of specialist doctors in the public health care sector on average, which means that abortion access is actually not even available. This also means that setting up Medical Boards is not even feasible or possible in rural areas.

The amendment also does not consider the ease with which abortions can be performed by doctors. Abortions are very safe nowadays, safer in fact than carrying a pregnancy to term. In early stages, they can be induced by oral medication and vacuum aspiration, which are incredibly safe and have minimal side effects. Now, doctors’ hands are tied and they cannot provide care without having independently performed ten prior abortions or having training of three months. By instituting these conditions, the government places a greater burden on those from rural areas who already have to travel miles to reach a doctor. These restrictions will only cause pregnant persons to turn to other unsafe methods of inducing abortion.

The MTP Act has a long way to go in guaranteeing maternal choice and health. However, it does make some strides in terms of protecting a woman’s right to privacy, by stating that her name and other particulars cannot be disclosed. Therefore, she can prevent her parents or even her partner from knowing about her abortion. Yet, it fails on two very important counts: in making abortion a right, and in actually granting access to abortion. On this front, requiring better qualified doctors and hailing it as a women’s health measure is just eyewash, especially when India does not have the infrastructure to keep up with these mandates.

A better solution for maternal health would be to increase doctors, abortion clinics and infrastructure in rural areas, and educate the public on the dangers of unsafe abortions. At the very least, the government can engage with groups working in this field before hastily passing legislation.

Sheerene Mohamed is a civil rights lawyer, practicing in the High Court of Karnataka, specializing in anti-discrimination cases. The article first appeared in The Leaflet