The Supreme Court of India. Photo: PTI
- On September 29, the Supreme Court ruled in a pathbreaking judgment that “all women are entitled to a safe and legal abortion”, recognising reproductive autonomy as a basic right.
- But health care providers continue to be ‘gatekeepers’ of abortion to women, so even though the judgment was good, will it be really implemented on the ground?
- Here, the authors select relevant portions of the verdict, list the associated gender-blind practices and specify how those practices can or should change in light of the verdict.
On September 29, the Supreme Court ruled that “all women are entitled to a safe and legal abortion”. The order addressed not just the issue of abortion but highlighted the sexual, reproductive and health rights of women – thus recognising reproductive autonomy as a basic right.
The judgment has been applauded by people from all walks of society, which it deserves to be – but health care providers (HCPs) continue to be the ‘gatekeepers’ in provision of abortion to women. So there is a need to ask: even though the judgment was pathbreaking, will it be really implemented on the ground in its true spirit?
That is, are our HCPs equipped and sensitive enough to provide abortion to each and every woman coming to them, as stated by the law?
There is enough and more evidence which suggests that women, especially those belonging to the lower socio-economic class, in rural areas, the ones coming from marginalised communities and single women find it difficult, at times impossible, to get an unwanted pregnancy medically terminated, especially in public health facilities, because of which they end up with risky and illegal abortions that endanger their lives.
Although the court’s order states that doctors “must refrain from imposing extralegal conditions on women seeking to terminate their pregnancies in accordance with the law,” the reality is far from it.
What would it take to change reality, however? In the following list, we select certain relevant portions of the apex court’s verdict, enumerate the associated gender-blind practices and specify how those practices can or should change in light of the verdict.
1. “The term woman in this judgement as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies…”
Prevalent gender-blind practices: It is evident that individuals who don’t conform to binary sexual orientation and gender identities are excluded from accessing health care in a range of ways. There is little understanding among HCPs that pregnancy can arise even among persons who are not cis-women, who may not have undergone gender reconstruction surgeries or may be in the process of transformation, still retaining organs of the female reproductive system and thus can get pregnant. (And they do, thanks to sexual violence and the practice of “corrective rape” as a way to “cure” homosexuality.)
Gender-sensitive practices expected: With the new judicial interpretation, HCPs will be expected to provide services to any person who is pregnant and needs an abortion. For this, their limited understanding of gender needs to expand. They will have to understand the specific vulnerabilities of transmen and lesbian women owing to which they can get pregnant, and provide abortion services to them without any bias.
2. “Significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy…”
Prevalent gender-blind practices: Current practices are indicative of the fact that the opinion of a pregnant woman seeking abortion is given the least importance. In spite of the law not requiring anyone’s consent other than that of the adult pregnant woman, HCPs also require the consent of the husband or the woman’s guardians. HCPs also try to deter pregnant women seeking an abortion if it is a first pregnancy, by stoking fears of secondary infertility, and “counsel” them to continue the pregnancy.
Gender-sensitive practices expected: The judicial interpretation places more autonomy in the hands of women, giving them the decision-making authority to assess their situation and decide on continuation or discontinuation of a pregnancy. Based on this, HCPs will have to honour the decision of the woman who seeks abortion without erecting undue barriers like seeking consent from husbands or other family members and not using their position to deter women from seeking abortions altogether.
3. “By eliminating the word “married woman or her husband” from the scheme of the MTP Act, the legislature intended to clarify the scope of Section 3 and bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law”
Prevalent gender-blind practices: The current practices of HCPs are guided by notions of sexuality that recognise sexual contact only within marriage. Evidence shows that it is relatively easier for married women to seek abortion services as opposed to unmarried or single women. In the case of women who are unmarried, a battery of investigations are conducted – indicative of the HCPs’ own biases and moralistic standpoints.
For example, when single adult women approach a health facility for abortion, it is mandatory for HCPs there to report to her parents or guardians. In cases where the HCPs have doubts about the marital status of the woman, they engage in intensive inquiries into her relationships, and even pester the woman to say why she didn’t disclose it to her partner or parents. Sometimes a medico-legal case is registered even though it is not a requirement under law.
Such practices stem from biases and unfounded fears that if all these steps are not taken, HCPs will be falsely implicated by the partner/parents.
Gender-sensitive practices expected: The judicial interpretation makes it clear that any woman – irrespective of her marital status – has a right to seek abortion without being questioned and without requiring the involvement of the husband or other family. HCPs need to shed their morals and their biases vis-à-vis sexual activity and be open-minded to the fact that it is their responsibility to provide abortion to any woman, without judging her.
HCPs also needn’t worry about having complaints lodged against them.
4. “The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her…”
Prevalent gender-blind practices: HCPs involve the husbands in every decision related to abortion. In cases where the woman clearly states that she does not want to inform the husband of an unwanted pregnancy, she is denied abortion for fear of the husband causing ‘issues’ later. The practice of HCPs is also heavily guided by a paternalistic attitude towards the unborn child, which they reason belongs to the husband also and so the woman can’t be the sole decision-maker. They see it as their moral responsibility to inform the husband.
Despite evidence on intimate partner violence and the resulting unwanted pregnancies, HCPs completely fail to acknowledge it. There is little understanding of the vulnerable position that a pregnant woman might be in and the fact that involving her husband could put her at more risk of violence. Such an attitude indicates a refusal to acknowledge the autonomy of women on whether to continue a pregnancy that is a result of forced sexual relations and violence.
A survey by CEHAT in two public hospitals, regarding, domestic violence faced during pregnancy, revealed that 22% of women (31) accessing antenatal care during pregnancy reported that it was unwanted and a consequence of forced sex by their partners. (Editor’s note: The authors are or have been affiliated with CEHAT.)
Gender-sensitive practices expected: The judicial interpretation makes it clear that even within a marriage, if a sexual relation is without the woman’s consent, it amounts to rape. HCPs need to be sensitive and ask if the woman faces violence in her marriage and if the pregnancy is an outcome of that. HCPs will also have to stop the practice of seeking consent from husbands, and respect the woman’s decision instead.
5. “It is lamentable practice for RMPs to insist on compliance with extra-legal conditions such as consent from the woman’s family, documentary proofs, or judicial authorisation. These extra-legal requirements have no basis in law.”
Prevalent gender-blind practices: HCPs and health facilities make access to care contingent on the submission of age proofs, court orders, marriage certificates, registration of medico-legal cases, etc. A 2019 study assessed the role of judiciary in providing access to abortion. It found that of the 243 cases files across 14 high courts between June 2016 and April 2019, 29% involved rape and 23% were filed within 20 weeks.
Gender-sensitive practices expected: The insistence on documentary proof has become routine practice, and several women seeking abortions have been turned away by HCPs on these grounds. The court has now clarified that these are all extralegal conditions and that doctors must refrain from imposing these conditions on women seeking abortion. The woman’s consent is all that matters.
6. “The MTP Act also seeks to protect the privacy of a woman who has terminated a pregnancy – any RMP who reveals the name or other particulars of such a woman shall be liable to be sentenced to imprisonment which may extend to one year, or with fine, or both…”
Prevalent gender-blind practices: Health facilities don’t respect the privacy of women. Many women seeking abortions are often referred to the casualty department for the registration of a medico-legal case. This is a breach of privacy because her information then enters the case record and which is sent to the local police. This is true for all single women, for married women who are not accompanied by their husbands or who don’t have documentary proof of age of marriage.
Gender-sensitive practices expected: All health facilities must stop this practice and adhere to the law, and keep all information related to women seeking abortion confidential. In fact, the law mandates that such information be kept in sealed envelopes at the health facility.
7. “There is no requirement that an FIR must be registered, or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act…”
Prevalent gender-blind practices: Women seeking a termination of pregnancy on the grounds of rape are often asked by health providers to first register a case with the police or even asked to produce an FIR or a letter from the police. Such responses are common for rape survivors reaching the hospital directly for treatment.
Despite amendments to the law in 2013, which established a right to treatment for rape survivors (Section 357(c)), they are not provided treatment until a police case is registered.
Gender-sensitive practices expected: An unwanted pregnancy is a health consequence of rape and must be attended to immediately. The court’s order also further clarifies that the prevalent ‘norm’ of demanding an FIR is incorrect per the Medical Termination of Pregnancy (MTP) Act 1971.
8. “To ensure that the benefit of Rule 3B(b) is extended to all women under 18 years of age who engage in consensual sexual activity, it is necessary to harmoniously read both the POCSO Act and the MTP Act. For the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, we clarify that the RMP, only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details of the minor…”
Prevalent gender-blind practices: There is a current practice to mandatorily report an underage girl seeking medical termination of pregnancy under the Protection of Children from Sexual Offences Act (POCSO) 2012, during which the girl’s identity is revealed even if she and/or her family don’t want to, and irrespective of whether the act was consensual.
Instances of young girls leaving a health facility the moment they realise access to abortion is contingent on the registration of an FIR have been reported as well.
Gender-sensitive practices expected: The judicial interpretation protects the privacy of the girl who seeks an abortion, obligating HCPs to change their approach. They are now responsible for keeping the survivor’s name confidential while reporting to the police. They can document the reasons for the survivor choosing to withhold their name. That is, they will have to inform the police that there was a minor who sought an abortion but didn’t want her name to be revealed.
It will then be the responsibility of the police to sensitively handle the case and investigate in a manner that protects the girl’s privacy and confidentiality.
The judgement also reiterates the Union health ministry’s 2014 guidelines and protocols for the medico-legal care of survivors/victims of sexual violence, which established standards of care for informed consent, history-taking, examination, treatment, collection of evidence and formulation of medical opinions.
This is critical as doctors’ reports to the police is a major barrier in accessing care for survivors, who may need time to decide; may not wish to go through criminal justice system; may wish for counselling and treatment; may have confronted the abuser and may now want to move on; or may be from a structurally excluded group (based on caste, work, religion, etc.) in need of support and protection before filing a police case.
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The Supreme Court’s judgment has located reproductive decisions within the constitutional rights to dignity, autonomy, privacy and health, giving a big boost to the movement to decriminalise abortion in India.
The judgment also clarified that the 2021 amendment to the MTP Act does not distinguish based on marital status, specifying that the marital status of a woman can’t be grounds to deprive her the right to terminate an unwanted pregnancy. According to the court, women also include “persons other than cis-gender women who may require access to safe medical termination of their pregnancies.”
Importantly, the court has recognised that the mandatory reporting of adolescent consensual activity poses several barriers to accessing abortion, contraception and a range of sexual and reproductive health needs, and said that the identity of minors must be protected.
The authors acknowledge comments from Sangeeta Rege, Sanjida Arora and Jagadeesh Narayanreddy.
Padma Bhate-Deosthali is a former coordinator and Amruta Bavadekar is a research officer – both at the Centre for Enquiry into Health and Allied Themes (CEHAT).