Representative photo of an ultrasound scan of a foetus. Photo: Mart Production/Unsplash
Last week, the Medical Termination of Pregnancy, or MTP, (Amendment) Bill received the President’s assent and was notified by the Centre on March 25, 2021. The Bill amends the MTP Act 1971, which regulates the conditions under which a pregnancy may be aborted.
The amendments in the new Bill increase the time period within which an abortion can be legally conducted. Before the amendment, the Act required one doctor’s opinion if the abortion was within 12 weeks of conception and two doctors’ opinions if it was between 12 and 20 weeks. The amendment now allows abortions to be conducted within 20 weeks on one doctor’s advice and between 20 and 24 weeks on two doctors’ advice for specific categories of women, including victims of rape (although excluding marital rape).
The Bill has also directed states and union territories to set up ‘medical boards’ to decide if pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities.
The amendment has introduced a change in Section 3 of the Act to cover unmarried women. As opposed to using the term “married woman and her husband”, the amendment uses the term “woman and her partner”. So an unmarried woman can also terminate pregnancies within the gestational limits under the Act. Another addition to the Act is the introduction of Section 5A, which penalises medical practitioners who fail to protect the privacy and confidentiality of women who wish to terminate their pregnancies.
Abortion has always generated intense moral, ethical, political and legal debates. This is because abortion is not merely a medico-technical issue but lies at the fulcrum of a broader ideological struggle contesting the meanings of the family, the state, motherhood and women’s sexuality.
Unlike many other countries, India has legalised abortions in the last four decades. But despite these efforts, abortion has often been critiqued – for lack of access to safe abortions, the Act’s overlap with other Acts (like the Pre-Conception and Prenatal Diagnostic Techniques (PCPNDT) Act 1994 and the Protection of Children from Sexual Offences (POCSO) Act 2012).
A method of population control
Several feminists have argued that the legislation that came to be known as the MTP Act was purely a population control method instead of being a feminist nudge to lawmakers, as it lacked a rights-based framework. A Bibliography of Abortion Studies in India (1970) by Malini Karkal indicates that the research agenda has been geared towards understanding abortions with respect to age, socio-economic background, duration of marriage, pregnancy and contraceptive histories. This agenda, along with a growing emphasis on family planning in the 1960s, contributed to close linkages between liberalisation of access to abortions and population control.
In this context, themes like liberalisation vis-à-vis its birth control potential and the possible implications for the country’s social and cultural fabric began to appear. As a result, the government appointed the Dr Shantilal Shah committee, and which submitted its report on the legalising abortion. After this, Parliament passed the MTP Act 1971.
When the Act came into force, there were two sets of opinions: one that comprised proponents of family-planning and population control and which supported the liberalisation of abortions, and the other concerned about the ill-effects of abortions conducted by unqualified, untrained and ill-equipped medical practitioners.
The recent amendments require the termination to be performed only by doctors with a gynaecology or obstetrics specialisation. But as opposed to the WHO’s recommended ratio of one doctor for every 1,000 people, India has only one government doctor for every 10,189 people. In addition, the 2018 All India Rural Health Statistics show that there are only 1,351 gynaecologists and obstetricians at community health clinics in rural areas. This shortage of qualified medical professionals will limit women’s access to safe abortion services. The National Health and Family Survey 4 (2015-2016) data also showed that 47% of abortions in India are carried out by nurses, auxiliary nurse midwives, lady health visitors or family members.
The complicated relationship between abortion and sex selective against female foetuses has been a dilemma that the women’s movement has been grappling with since the late 1980s. It arises from situations in which women themselves decide to have sex-selective abortions, and which then intersects with the complex understanding of ethics and agency in the context of women’s control over their bodies. Many women in India also undergo sex-selective abortions under pressure from their husbands’ families, and this is usually not an informed choice. Other reasons to abort are almost always shaped by factors like illegitimacy, lack of social facilities for childcare (placing a disproportionate burden on women), economic constraints, etc.
The PCPNDT came into effect in 1994 after a successful campaign in the face of rising instances of sex-selective abortions. A section of Indian feminists played an instrumental role to ensure the law restricted tests of the biological sex of foetuses. But regardless of such legislation, the sex ratio at birth in India has continued to fall, suggesting that sex-selective abortion continues.
Reading the MTP and the PCPNDT Acts together suggests that while the right to abortion includes women’s right to control their bodies, they should be restricted by law from choosing specifically to abort female foetuses.
Even though the feminist position on sex-selective abortions in India has shifted significantly in the last four decades, there are some lingering questions to which there are no simple answers. Most women in India have no control over the conditions in which they have sex and abortion is often the only form of birth control. Women also have abortions because of the stigma of illegitimacy, because they can’t afford another child or because they are at a stage in their careers or lives when they can’t assume responsibility for another human life.
Be it the liberalisation of abortions through the MTP Act or the penalisation of sex-selective abortions through the PCPNDT Act, a woman’s bodily autonomy still primarily lies with the state rather than with her.
Overlap with POCSO Act
In the case of a pregnancy of a minor, doctors are often caught between the overlapping portions of the MTP and the POCSO Acts, The Hindu has reported. On the one hand, the MTP Act’s confidentiality clause requires medical practitioners to protect the person’s identity, but the POCSO Act and the Code of Criminal Procedure mandate practitioners to report sexual offences against children.
In the same report, some doctors said that mature adolescents who mutually choose to have sex must not be criminalised for a natural desire. The state must protect the right to safe and legal abortions for girls between the ages of 16 and 18 who visit practitioners with accidental pregnancies and infections. While the MTP and the POSCO Acts’ aims are diametrically opposite, their contradicting overlap means consensual sex between matured adolescents must indeed be kept out of criminal purview.
In a recent plea seeking the compounding of a case involving teenagers, the Supreme Court issued a notice in a special leave petition. The judge observed that a more liberal provision could be introduced in POCSO offences to distinguish the case of teenage relationships after 16 years from the cases of sexual assault vis-à-vis children.
The road ahead
While specific changes like extending gestational limits and including unmarried women are laudable, the amendment still leaves women with various conditionalities that in many cases impede access to safe abortion. With the overarching qualifier of “grave injury to her physical or mental health or severe physical or mental abnormality of the foetus”, the woman’s agency ends up taking a backseat, requiring validation from the law at every step. In Justice K.S. Puttaswamy v. Union Of India and Others (2018), Justice Chandrachud stated that reproductive choice is a personal liberty guaranteed under Article 21 of the Indian Constitution. But the verdict, while laying a robust jurisprudence on reproductive rights and the privacy of a woman, didn’t fundamentally shift power from the doctor to a woman seeking abortion. Abortion thus remains tied to state-sanctioned conditions and not a woman’s rights.
The 2003 Rules to the MTP Act were amended to allow certified providers outside registered facilities to provide medical abortion services up to seven weeks (with some conditions), given that 81% of abortions in India take this route. Medical abortion is a safe and non-invasive method in which prescribed drugs are used to terminate a pregnancy. However, due to the lack of a regulatory framework and insufficient public healthcare facilities, most abortions are sought at private facilities, resulting in higher costs for marginalised groups.
So it would be interesting to see whether the Rules of the amendment address the specificities related to medical abortion, especially with respect to narrowing down the provisionary gap by allowing AYUSH1 practitioners, staff nurses, medical officers and auxiliary nurse and midwives to provide for medical abortions for up to 12 weeks.
As for terminations after 24 weeks – the Act doesn’t reflect the urgency of the woman because it doesn’t mention a time frame within which the medical boards will have to examine the pregnancy and share their opinions. In the experience of lawyers associated with NyayaSarathy Foundation, an organisation working to improve access to justice for marginalised communities2, court-appointed medical boards were functioning promptly because the courts monitored them.
The other issue with terminating pregnancy after 24 weeks has to do with medico-legal issues. That is, women who wish to terminate a pregnancy after 24 weeks but don’t fall under the purview of “foetal abnormality” may have to knock on the doors of the courts, yet again.
At this stage, specific provisions need to be clearer, and we can only hope that these issues will be addressed as and when the government promulgates the Rules.
Devika Nair is the founder and director at NyayaSarathy Foundation and an independent human rights law and advocacy consultant. Shruti Singhi is a law student from K.C. Law College, Mumbai, and has worked on projects with Monk Prayogshala and NyayaSarathy Foundation in the past. Sumati Thusoo is the founder and director at NyayaSarathy Foundation working to increase access to justice for marginalised communities and is associated with Monk Prayogshala.