Last week, the Medical Termination of Pregnancy (Amendment) Bill (MTP) received the president’s assent and was notified by the Central government on March 25, 2021. The Bill amends the MTP Act 1971, which regulates the conditions under which a pregnancy may be aborted. The amendments to 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 done within 12 weeks of conception and two doctors’ opinions if it was done between 12 and 20 weeks. The amendment has now allowed abortion 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 fetal abnormalities.
The amendment has introduced a change in Section 3 of the Act that has now been extended to cover unmarried women. As opposed to using the term ‘married woman and her husband,’ the new amendment uses the term ‘woman and her partner.’ Hence, an unmarried woman can also terminate pregnancies within the gestational limits under the Act. Another addition to the Act has been the introduction of Section 5A that penalises medical practitioners who fail to protect the privacy and confidentiality of women who wish to terminate their pregnancy.
Despite these welcome amendments in asserting women’s reproductive rights in the country, abortion has always generated intense moral, ethical, political and legal debates. This is because abortion is not merely a medico-technical issue but a fulcrum of a much broader ideological struggle in which the very meanings of the family, the state, motherhood and women’s sexuality are contested.
As opposed to many other countries, India has legalised abortions for the last four decades. Despite such efforts for liberalising abortions, the subject of abortion has often been viewed and subsequently critiqued from various perspectives. These issues vary from lack of access to safe abortions to the Act’s overlap with other acts such as the Pre-Conception and Prenatal Diagnostic Techniques (PCPNDT) Act 1994 and the more recent Protection of Children from Sexual Offences (POCSO) Act, 2012.
MTP as 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 rather than a feminist nudge to lawmakers as it lacked a rights-based framework. A quick examination of A Bibliography of Abortion Studies in India (1970) by Malini Karkal finds that the research agenda was geared towards understanding abortions with respect to age, socio-economic background, duration of the marriage, pregnancy, and contraceptive histories.
This research agenda, along with the growing emphasis on family planning in the 1960s, contributed to the close linkages drawn between the liberalisation of access to abortions and population control. In this context, themes such as liberalisation vis-à-vis its birth control potential and the possible implications of liberalisation on the social and cultural fabric began to appear. This resulted in the appointment of the Dr Shantilal Shah Committee, which submitted its report on the Legalization of Abortion by the government of India, following which, the MTP Act was passed by the parliament. When the MTP Act came into force in 1971, there were two sets of opinions; one that comprised the proponents of family planning and population control favouring 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. As opposed to the World Health Organization’s (WHO’s) recommendation of a 1:1000 ratio, India has one government doctor for every 10,189 people. In addition to that, the All-India Rural Health Statistics (2018-19) show that there are a total of 1,351 gynaecologists and obstetricians in community health clinics in rural areas. Such a shortage of qualified medical professionals limits women’s access to safe abortion services and was also reflected in the National Health and Family Survey 4 (2015 – 16) data. The NHFS 4 data showed that 47% of the abortions in India are carried out by the nurses or Auxiliary Nurse Midwife (ANM), or Lady Health Visitor (LHV), Dai, or the family members.
The dilemma regarding sex-selective abortions
The complicated relationship between abortion and the practice of selective abortion of female fetuses has been a dilemma that the women’s movement has been grappling with since the late 1980s. This arises from situations wherein women themselves decide to have sex-selective abortions, which then intersects with the complex understandings of ethics and agency in the context of women’s control over their bodies. Many women in India undergo a sex-selective abortion under pressure from their husbands’ families, and it is usually not an informed choice that they willingly make. Other reasons to abort are almost always shaped by factors like – illegitimacy, lack of social facilities for childcare that place a disproportionate burden on women, economic constraints, and so on.
The PCPNDT came into effect in 1994 after a successful campaign in the face of rising instances of sex-selective abortions. There was a section of Indian feminists who played an instrumental role in campaigning for the legislation restricting the test of the biological sex of the fetus. Regardless of such legislation, the sex ratio at birth has continued to fall, showing that sex-selective abortion continues unchecked. The MTP and PCPNDT Acts, when seen together, point towards an interesting juxtaposition that while the right to abortion involves women’s right to control their bodies, they should be restricted by law from choosing specifically to abort female fetuses.
Even though the feminist position on sex-selective abortions in India has witnessed significant shifts 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 often becomes the only form of birth control. Women also have abortions because of the stigma of illegitimacy, or because they cannot afford another child, or because they are at a stage in their careers or their lives where they cannot take on the responsibility for yet another human life. Be it liberalising the 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 cases of a pregnancy of a minor, doctors are often caught in the contradictions and confusions between the overlapping of the MTP Act and the POCSO Act, states a report on the POCSO Act by The Hindu. On one hand, the confidentiality clause in the MTP Act mandates medical practitioners to protect the person’s identity, and on the other, the POCSO Act and the Code of Criminal Procedure (CrPC) require mandatory reporting of 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 Act and POSCO Act’s aim is diametrically opposite, there are junctures where they overlap, which is why consensual sex between matured adolescents must be kept out of the criminal purview. In a recent plea seeking compounding of a case involving teenagers, the Supreme Court has 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 relationship after 16 years from the cases of sexual assault on children.
The road ahead
While specific changes such as the extension of gestational limits, the inclusion of unmarried women are laudable, the amendment still leaves women with various conditionalities, which in many cases become an impediment in 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 fetus,’ the woman’s agency ends up taking a backseat, requiring validation from the law at every stage in the way. In Justice K.S.Puttaswamy (Retd.) vs. the Union Of India And Others, Justice Chandrachud stated that the reproductive choice is a personal liberty guaranteed under Article 21 of the Indian constitution, which, despite laying a robust jurisprudence on reproductive rights and the privacy of a woman, does not translate into a fundamental shift in power from the doctor to the woman seeking an abortion. Thus, abortion remains tied to the state-sanctioned conditionalities and not the rights of the woman.
The 2003 Rules to the MTP Act were amended to conditionally allow certified providers outside registered facilities to provide medical abortion (MA) services up to seven weeks, given that 81% of abortions in India are done using MA. Medical abortion is a safe and non-invasive method in which medically prescribed drugs are used to terminate a pregnancy. However, due to the lack of regulatory framework and insufficient public healthcare facilities, most abortions are being sought in the private sector resulting in increased costs for marginalised groups.
Thus, it would be interesting to see whether the Rules of the Amendment address the specificities related to MA, especially with respect to narrowing down the provisionary gap by allowing AYUSH ( Ayurveda, Yoga & Naturopathy, Unani, Siddha, and Homoeopathy) practitioners, staff nurses, medical officers, and auxiliary nurse/midwives to provide for MA up to 12 weeks, based on guidance by the World Health Organization.
Regarding terminations after 24 weeks, the Act does not reflect the urgency of the woman who will be availing the provisions as it does not mention any time frame for medical boards to examine the pregnancy and give their opinion. In the experience of lawyers associated with Nyayasarathy Foundation, an organisation working to improve access to justice for marginalised communities, earlier the medical boards that were court-appointed were functioning promptly due to the courts’ monitoring.
The other issue with the termination of pregnancy after 24 weeks is the medico-legal perception towards the termination of pregnancy. As a result, women who wish to terminate a pregnancy beyond 24-weeks and do not fall under the purview of ‘fetal abnormality’ may have to knock on the doors of the courts, yet again. At this stage, with specific provisions requiring further clarity, such as the category of women who would be allowed to terminate pregnancies between 20 to 24 weeks and details on the functioning and accessibility of medical boards, we can only hope that some of the lacunae would be addressed as and when the rules are promulgated.
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.