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The issues regarding women’s reproductive health and freedom do not often make it to the mainstream. A critical aspects of women’s reproductive freedom is abortion. The discourse around abortion includes complex interplay of a variety of factors like religion, power relations in society, moral and ethical standards, medical rationale, freedom and liberty, stigma, shame, the health and safety thereby generating a looming silence and the consequent misinformation on the subject.
HISTORICAL BACKGROUND OF ABORTION LAWS IN INDIA:
Before 1971, voluntary termination of pregnancies in India was a criminal offence (except when done in order to save a woman’s life) under Sections 312 to 316 of the Indian Penal Code, 1860. However, the criminal status of the practice pushed it to be carried out in secrecy. The underground, illegal termination of pregnancy by untrained professionals put the health of women at risk. A committee set up in the 1950s, known as the Mudaliar Committe found the maternal mortality rate to be 1,000 deaths per 100,000 live births. Though the findings are challenged by various experts as being underestimated, the Central Family Planning Board held its 16th meeting expressing concern over rising number of illegal abortions and the threat this posed to the lives and health of women. This resulted in setting up of the Shah Committee in 1964 which estimated that 6.5 million abortions could be expected just that year. This led to the enactment of the Medical Termination of Pregnancy Act, 1971.
THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971:
The Medical Termination of Pregnancy Act,1971 (MTP Act) ushered in a new era of giving larger reproductive rights to women, in terms of the availability of abortion for a wide categories of women. However, it failed to satisfy the needs of the women to have autonomy or control over their bodies. The act was a response to the rising population levels and the challenges posed thereof. It suited well to the family planning needs of the country and not, the right of women to choose whether or not to continue pregnancy. It placed such autonomy in the hands of the state and the medical practitioners and made women mere beneficiaries rather than primary stakeholders in the matter of abortion. The act views the right of women to abortion from a public health perspective and not from that of providing access to safe and legal abortion as matter of right. It is to be noted that abortion is not a norm but an exception to the provisions of IPC as it strictly specifies the conditions as to when and how women can exercise their ‘right’.
Provisions of the act:
The MTP Act allowed termination of pregnancies according to the gestational age of the foetus. Under Section 3, a woman can seek the medical termination of pregnancy (MTP) if the continuance of the pregnancy would pose a risk to the life of the mother or cause grave injury to her physical or mental health; or there is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. For foetuses that are aged up to 12 weeks, only one medical practitioner’s opinion is required to that effect. But if the foetus is aged between 12 weeks and 20 weeks, the opinion of at least two medical practitioners’ is required.
The MTP Act,1971 also specifies that ‘grave injury’ may be explained as the anguish caused by a pregnancy arising out of rape, or the anguish due to unwanted pregnancy arising out of the failure of contraceptives used by a married woman or her husband. Beyond 20 weeks, termination may be carried out where it is necessary to save the life of the pregnant woman.
- Interestingly, or rather sadly, the MTP Act of 1971 was passed to control the population growth and to protect medical professionals from potential crime cases and it had less to do with women’s right to reproductive choices. The final say is given by the Registered Medical Professionals(RMPs) and it created a sort of monopoly of the RMPs in an issue that is critical for the well-being of women.
- Moreover, only RMPs could provide abortion. However, majority of abortions in India are carried out by the nurses or Auxiliary Nurse Midwife, or Lady Health Visitor, and Dais. Experts argue that trained people, which had been providing these services well before 1971, like the trained allopathic physicians, ayurvedic physicians, and nurses, should be included in the pool of practitioners providing services under the Act. A 2012 study found out that the failure rate of abortions by trained allopathic physicians, ayurvedic physicians, and nurses was low (5%-6%) and identical across all three categories of professionals. Statistics have shown that there is a shortage of gynaecologists and obstetricians in community health clinics in rural areas. Such a shortage of qualified medical professionals is an impediment in women’s access of abortion services. The diversity in service providers would also significantly enhance the availability of safe and legal abortion and more abortions, which are carried out by these providers underground, could then fall under the ambit of legality. Thus, it makes a strong case for diversifying abortion providers and providing resources and requisite training to these providers.
- Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT) has proved to be a significant barrier in implementing the MTP Act 1971. There are numerous misconceptions and confusions between the two which results in doctors refusing to do abortion due to the fear of potential criminal cases against them under the PCPNDT Act. The information about the linkages between the two acts, if any, must be adequately communicated to doctors so that women seeking genuine legal abortions are not turned away. There should be a concrete effort to bust the myths and make safe and legal abortion more accessible.
- Further, the act specifies the gestational limits within which the women can seek abortion. This is not the case in nearly 70 countries around the globe, where a woman can get an abortion ‘on request’ with or without a specific gestational limit (which is usually 12 weeks). Examples of such countries are: Iceland, France, Canada, South Africa and Uruguay. The act was developed at a time when there were major risks in conducting MTP beyond a certain point, due to the backward medical technology. However, today, though the technology has advanced, women are not able to reap its benefits due to restrictive gestational limits of a legislation dating back half a century.
Abortion performed by trained professional in a hygienic setting is a very safe procedure, today. Some experts have even carried out comparative analysis and have said that abortion is about twice as safe as having one’s tonsils removed, and much safer than giving birth. In fact, it is ten times safer than giving birth if performed before the eighth week of pregnancy.
- Further, today, with the advancement in technology, foetal abnormalities can be discovered even after 20 weeks gestational limit. By keeping the ceiling artificially low, women who obtain reports of serious foetal abnormality after the 20th week have to suffer pain and agony because of the deliveries that they are forced to go through. The cost of caring for a special child is also not taken into consideration. Keeping the ceiling as low as 20 weeks, in today’s advanced medical world, for women who get pregnant after being raped shows the callous approach towards women’s safety where the society, the law and the courts have all failed them.
- Medical boards:
Further, the provision of medical boards, which was not a feature under the MTP Act, 1971 is a major issue in accessing abortion. Doctors, afraid to carry out abortion referred the women to courts and women seeking termination of pregnancy beyond 20 weeks had no other option but to approach the courts and thus, a deluge of petitions were filed before the Supreme Court and various High Courts by women seeking to terminate pregnancies.
The courts, considering themselves ill -suited to form such medical opinion, adopted the practice of appointing medical boards of government-run medical institutions to assist them in arriving at a decision. The composition of the board was determined by the medical institution or in some cases, by the courts.
The problem with these boards is that they venture into issues like viability of the foetus, possibility of corrective surgery, which women had already discussed with their doctors, further subjecting women to long and arduous judicial and medical procedures. And so, women lost precious time. Further, courts began to wholly rely on the decision of the medical board who, in many cases have based their decisions on moral, social, marital and maternal norms whereas little or no attention is paid to the reasonable and foreseeable future of the pregnant women and her socio-economic conditions to be able to care for the child. In many cases, the boards assign personhood to the foetus, prioritising it over the life, liberty and privacy of a human being. In majority of the cases, the court relied primarily on the opinion of the medical board.
Reproductive rights lawyer Meenaz Kakalia has said that “one finds paternalistic condescension masked as concern for the woman’s wellbeing or that of the unborn foetuses’ ‘life’. These are some of the comments that women, some of them very young girls whose pregnancies have been caused out of rape, which have approached courts seeking abortions have had to endure.”
It is important to note that the MTP Act does not state that medical boards are required or that their opinions and recommendation must hold a certain value in a certain judgement. Yet, Judiciary continued to rely on their opinions, which prejudices the women as these medical boards only take into account the medical factors rather than taking a comprehensive view of legal, financial, social and economic implications.
It has been found that the medical boards constituted by the courts would often include doctors that did not have experience or training in gynaecology and obstetrics. Medical boards do not follow a consistent set of parameters on the basis of which they offer advice, leading to inconsistencies.
- After 20 weeks, under the MTP Act,1971, abortion is allowed only where it is immediately necessary to save the life of the woman. This points towards a clear bias to the mental health of the woman, whose mental health is placed on the same footing as physical health for pregnancies below 20 weeks, however, the importance placed on mental health is relegated in pregnancies over 20 weeks. The Act does not adequately recognise the social and economic implications of unwanted pregnancies and their impact on physical as well as mental health of the woman in the short as well as long term.
The MTP Act was further amended in 2002 to facilitate better and more universal implementation and increased access for women, especially in the rural areas.
THE ROLE OF JUDICIARY:
India has seen much advances since 1971 which has changed the discourse around autonomy, liberty, reproductive and health rights. There are several instances where the judiciary has led the way in setting progressive and liberalised precedence.
In 2017, in the landmark case, Justice K.S.Puttaswamy (Retd) vs Union Of India, Supreme Court held the right to privacy a fundamental right and that the right to have an abortion is a dimension of the right to privacy guaranteed under Article 21. This would entail the right to control one’s health and body, including sexual and reproductive freedom. Experts have said that women are not granted liberty with respect to their bodies but the Act gives her a narrow set of conditions where doctors and medical boards decide for her. The decision to terminate a pregnancy, notwithstanding the risk that it may involve, must be between a woman and her gynaecologist based on fully informed consent, and cannot be based on the subjective satisfaction of a medical board.
In 2009, in Suchita Srivastava & Anr vs Chandigarh Administration, the Supreme Court held personal liberty under Article 21 includes a woman’s right to make reproductive choices. “Reproductive choices can be exercised to procreate as well as to abstain from procreating”, thus granting women autonomy over their bodies.
In a ground-breaking judgement in Shaikh Ayesha Khatoon v. State, the Court allowed the pregnancy to be terminated in its 27th week and Section 5 was interpreted in light of the issues highlighted in Section 3, which meant that mental and physical anguish had to be considered while interpreting “immediately necessary to save the life.”
In an analysis of the “Pratigya Campaign for Gender Equality and Safe Abortion” report shows that in the cases of MTP due to foetal abnormalities brought before the Supreme Court, the life of the pregnant women was given priority over the foetus and thus, termination was allowed. However, in a few cases, where the medical board believed that there was a likelihood of survival of the foetus after birth, the court was inclined to refuse permission. This is a departure from the original standard that gauged the impact of the pregnancy or its termination on the physical and mental health of the woman. By using terms like “life of the foetus”, the viability of the foetus has been made a factor in decision-making.
There have also been cases of women knocking the doors of the court to terminate pregnancies which are below the statutory limits as prescribed under the Act. Since there is no need for judicial intervention in such cases, these go on to show the myths and misinformation around the practice of abortion and makes a strong case for government to work on abortion related awareness campaigns.
There have been various cases where, due to long judicial processes, women who otherwise would have been granted abortion, were not, due to delays in judicial proceedings. In one case, Ms. Z v. State of Bihar the court rejected the demand for abortion, citing that there had been no mental anguish to the petitioner since there was a delay in disclosing the incident of rape. When this erroneous decision was appealed in the Supreme Court, it did not grant the appeal on account of the gestation being over 30 weeks. In this particular case, the Patna High court stated that there was a compelling state interest in protecting the life of the foetus, thereby indicating the prevalence of a rudimentary mindset whereby women are considered as child breeding factories, with little or no bodily integrity.
Thus, there are some inconsistencies between the judicial response in individual cases in High Courts and the Supreme Court versus the general jurisprudence of the Supreme Court with regards to abortion.
MTP AMENDMENT ACT, 2021:
The Medical Termination of Pregnancy (Amendment) Act, 2021 was enacted on 25 March 2021. The act has done well in furthering the gestational limits within which a woman can seek termination of pregnancy. The amendment has allowed abortion to be conducted on one RMP’s advice within 20 weeks, and from 20-24 weeks on two RMP’s advice.
The amendment has also come to the rescue of many women, whose foetuses are diagnosed with substantial abnormalities, as it removes the upper gestational limit in such cases. This is in line with the medical and technological advancements in ultrasonography and genetic technologies which could diagnose foetal malformation well beyond the prescribed 20 week limit. It has thus amended the outdated and inadequate safeguards in line with growth of medical services and jurisprudential development favouring women’s reproductive rights and life choices.
The act is also representative of the changing nature of the society by being inclusive of a wide range of relationships like live-in relationships, whereby couples are not married or other romantic relationships. In this regard, the Act, in Explanation to sub-section 2 of Section 3, has substituted the words ‘married woman or her husband’ with ‘ any woman or her partner’ thereby, enlarging the scope of reproductive rights of women. This provision has stemmed from the judgement in High Court on its Own Motion v. State of Maharashtrawherein the court observed that, “today a man and a woman who are in live-in-relationship, cannot be covered under Explanation 2 whereas Explanation 2 should be read to mean any couple living together like a married couple.”
However, the amendment Act fails to amend the very basics of the principal Act as it does not give any agency to the women, but rather, to the RMPs and the medical boards.
- The biased, prejudiced and patriarchal notions of the medical boards have come to light on account of a number of cases as highlighted above. The amendment act, instead of eradicating the practice of referral to Medical Boards has made it a permanent feature. Though, there is no upper limit for MTP in case of substantial foetal abnormalities, experts point out that the word ‘substantial’ must have been properly defined. Further, it is left to the discretion of the medical boards to categorise a foetal abnormality as substantial and not to the woman and her gynaecologist. It will further subject women to vigorous and long judicial procedures, considering no time frame has been fixed by the act for medical boards to pronounce their decision.
- There have also been demands by various NGOs of doing away with the ceiling in cases of rape which has not been accommodated in the amendment. Women that have crossed the length of pregnancy beyond 24 weeks but have not been diagnosed with foetal abnormalities, i.e. the women that seek termination of pregnancy on the basis of rape, or grave injury to her physical or mental health, will still have to approach the court if they seek termination through writ jurisdiction of courts. The amendment should have been considerate of the mental anguish stemming from carrying the child of the rapist, along with societal stigma and financial difficulties.
- The Supreme Court in Puttuswamy judgement has ruled that a woman’s right to make reproductive choices is a dimension of personal liberty as understood under Article 21 of the Constitution. Drawing from the above judgement, Section 5-A of the amendment Act deals with the protection of the privacy of women. Medical practitioners are barred from revealing details of a woman whose pregnancy had been terminated under the Act. The information can only be given to authorized persons, in accordance with the provisions of the Act only. However, under the POCSO Act, if a minor conceives, and wants to abort, the matter has to be reported to the police. Thus, there is certain grey area between MTP Act and the POCSO Act which the amendment to the former has failed to ascertain. Also, medical abortion pills are classified as Schedule H drugs for which a pharmacist must maintain a record of sales under the Drugs and Cosmetics Act, thus violating confidentiality provisions of MTP Act, 2021.
THE STATE OF ABORTION IN INDIAN SOCIETY:
The Indian society, particularly the rural society is characterised by male domination and gives power in sexual relations to men. Women have little or no say in matters related to sexual intercourse and they lack the power to negotiate for safer sex or the use of contraception.
The debate around the issue of abortion has always evoked different reactions from different quarters. Since abortion involves terminating a foetus, it is deplored upon on moral grounds as being unethical. The more liberal set of society, advocating for wider abortion rights for women hold that abortion is a matter of choice for women and they’re entitled to reproductive freedom and autonomy.
Reasons for seeking abortion:
Why do women seek abortion? This is a question which, largely, shouldn’t be raised, given that every person has a human right to have control over her/his body. Pregnancy is a wonderful experience for women and couples who want a child. But being pregnant and having to carry the pregnancy to its full length can be a devastating experience for women who did not plan on being pregnant or women who were forced or coerced into sexual intercourse, like rape.
Abortion is strongly associated with unintended pregnancy and the non-use of contraception is the most common reason that unintended pregnancies occur in india. Globally, unequal access to contraception and ineffective use of available methods result in almost half of the 200 million pregnancies that occur each year to be unwanted or ill-timed. Since such a large number of pregnancies are unwanted, these take a physical, mental and financial toll on women and families. Pregnancy brings about a major change in life of women, with many women choosing to quit their jobs and become full-time caregivers for their children. Even though it is a choice, it is done, in most cases, due to family pressure and societal norms. Women, who continue with their jobs face the double burden of managing professional as well as personal responsibilities. Raped women, who seek abortion beyond gestational limits, probably due to delay in police and court proceedings have to bear the mental anguish and trauma associated with carrying her rapist’s child, along with societal stigma and shame. Further, the financial and emotional costs of caring for a special child are not given due consideration. This, coupled with raising a child that a woman did not want in the first place, leads to deterioration in quality of life hampering emotional, physical and financial well-being.
Women resort to abortion often because of financial difficulties, because women are not in a position to care for a child. Some other reasons are: becoming pregnant after too short a birth interval; experiencing health problems during pregnancy; becoming pregnant at an older age; becoming pregnant soon after marriage; suspecting husband’s infidelity; or having an extra-marital pregnancy. It can be seen that lack of access to contraception is a major determinant factor. This is because non- accessibility and non- affordability of contraception or family pressure.
Less than 10 percent of the abortions that take place in India are conducted legally. In 2015, 15.6 million abortions were accessed annually in India, according to a study in The Lancet. Of these, 78% or 12.3 million were conducted outside health facilities.
The question arises that since abortion is legal for a wide range of pregnancies, then why 3/4th of these are carried out outside health facilities, often in unsafe conditions, illegally?
Women seek abortion outside health facilities and from uncertified providers due to barrier in accessing legal abortions. Many women and indeed many people in India do not know that abortion is legally available to women, if they meet the required conditions. There are also many financial and logistics costs associated, which are just not an option for low-income rural women.
Certified providers are geographically inconvenient; staff at certified facilities tend to not respect women’s confidentiality; because women are unaware of certified facilities; because registered facilities often do not have a trained provider and/or the necessary equipment to provide safe abortion services; and many women are unaware that abortion is legal and publicly available. Cost, coercion, moral dilemma, late knowledge of pregnancy and unmarried status are additional reasons women seek illegal abortions. In India, there is a stigma attached to induced abortion due to the influence of moral and religious forces.
Service providers are bound to receive a requisite level of training but there is a shortage of trained providers and training facilities. According to 2019-20 Rural Health Statistics Report of the Ministry of Health and Family Welfare, there is a 70% shortfall in the number of obstetrician-gynaecologists in rural India, where majority of country’s population resides. Also, government facilities charge women for abortion when they’re expected to do it free of charge. The National Family Health Survey (NFHS), 2015-16 reported that only 20% of abortions take place in public sector facilities and 52% in private.
There is also an added advantage for women seeking abortion from uncertified providers of that of secrecy and confidentiality.
These are the reasons why women resort to less trained providers which are generally more accessible.
For adolescents, with fewer resources and lack of sex education, awareness and contraception, the situation becomes a lot gloomier. In 1995, almost 50 percent of deaths among women age 15-19 were abortion related. Further, adolescent face added fear, anxiety and social implications of being pregnant without being married. And so, they turn to more extreme measures for aborting pregnancy, seeking it from untrained, uncertified providers.
Around twenty percent of abortion-related deaths occur among adolescents. And so, there is a need to improve the level of reproductive health education in India.
The menace of illegal abortions:
Unsafe abortions are among the most common causes of maternal deaths India. More than half or 56% abortions in India are unsafe and 10 Indian women die daily due to unsafe abortion.
Unregistered facilities can also provide safe abortions provided by trained medical doctors in appropriate facilities. Further, uncertified abortion providers can include trained medical doctors and nurses in hospitals, Auxiliary Nurse Midwives (ANM), ayurvedics, homeopaths, dais or traditional birth attendants, family health workers, village health practitioners, pharmacy shop-keepers and village women. Women often resort to untrained practitioners operating under unsafe conditions. Common methods of inducing abortion include vaginal and oral methods. Rubber catheters, stones, twigs, or sharp wire objects are inserted into uterus, cervix and vagina to induce abortion. Other methods include massage, witchcraft, dilation and curette. Sometimes, vagina is directly flushed with bitter herbs or caustic substances like dye and commercial cleansers, or deliberate physical strain or harm inflicted on the body. These insertions often cause perforation of internal organs and rupture of the uterus, causing internal bleeding that can be fatal for the mother. These methods are unscientific, performed by untrained providers in unhygienic places and the result can be fatal. The most common complications from unsafe abortion are: pelvic infection, incomplete abortion, haemorrhage, uterine injury and cervical injury.
Anne Firth Murray, in her book “from Outrage to Courage” rightly summarises the problem thus-
“Of the many women who die every day from unsafe abortion, virtually all live and die in the developing world. These women die because of social structures which prevent them from learning about their own bodies and sexuality, which give power in sexual relationships to men, which deprive women of access to the means of controlling reproduction, which criminalize safe means of terminating pregnancy, and which surround the issue of abortion with such shame and censure that women are isolated and desperate.”
The MTP amendment Act, 2021 has done well to weed out the various outdated and restrictive provisions of the MTP Act, 1971. However, it has come with its own drawbacks and has failed to accommodate the demands of civil society as well as of women’s organisations to provide agency to the women themselves in a critical area of their life. It is rather ironic that a state that talks of Right to Life and Personal Liberty shies away from granting the women of its nation, the right to have bodily integrity and freedom of choice. It won’t be wrong to say that women in India still don’t have a right to abortion. It is rather granted as an exception to colonised and anachronistic provisions of IPC.
It is about time that we provide women with what has been long due, the right to live life on their own terms, without state interference in their civil liberties. The words of iconic American lawyer and jurist Ruth Bader Ginsburg echo this sentiment, “the decision of whether or not to bear a child is central to a woman’s life, well-being and dignity. When the government makes that decision for her, she is being treated as less than a full adult human responsible for her own choices.”
 The Medical Termination Of Pregnancy Act, 1971 (Act No. 34 of 1971)
 Shireen J., Jejeebhoy, Shveta Kalyanwala, and ors., “Feasibility of Expanding the Medication Abortion Provider Base in India to Include Ayurvedic Physicians and Nurses”, Vol. 38, No. 3, International Perspectives on Sexual and Reproductive Health, 2012.
 The Pre-Natal Diagnostic Techniques (Regulation And Prevention Of Misuse) Amendment Act, 2002 (No.14 Of 2003)
 Anne Firth Murray, “From Outrage to Courage: The Unjust and Unhealthy Situation of Women in Poor Countries and What They Are Doing About It” (Common Courage Press, Monroe, Maine, 2007)
 (2017) 10 SCC 1
 (2009) 9 SCC 1
 Writ Petition No. 36727 of 2017
 A Pratigya Campaign for Gender Equality and Safe Abortion Report on Assessing the Judiciary’s Role in Access to Safe Abortion An Analysis of Supreme Court and High Court Judgements in India from June 2016-April 2019
 Writ Petition No. 5286 of 2017
 Supreme Court, Civil Appeal No.10463 of 2017
 The Medical Termination Of Pregnancy (Amendment) Act, 2021 No. 8 Of 202
 2016 SCC OnLine Bom 8426
 (2017) 10 SCC 1
 THE DRUGS AND COSMETICS ACT, 1940
 Barge et al. 1997.
 Bandewar n.d.; Mathai 1998; Johnston et al. 2001
 Page 116, Anne Firth Murray, “From Outrage to Courage: The Unjust and Unhealthy Situation of Women in Poor Countries and What They Are Doing About It” (Common Courage Press, Monroe, Maine, 2007)
Author: Shefali, University Institute of Legal Studies
Editor: Kanishka Vaish, Senior Editor, LexLife India.