The new Medical Termination of Pregnancy Bill, 2020 (MTP Bill) was passed this March in the Lok Sabha, and is due to be discussed in the Rajya Sabha before it becomes an Act. While the amendments as they currently stand show signs of a more progressive law, the legislation betrays a selective vision and lack of intersectionality.
As detailed in a Tusharika Mattoo’s article on The Wire, the new Bill fails to give women the autonomy they deserve. We continue to provide abortion using a needs-based approach rather than a rights-based approach – so a woman still has to justify wanting an abortion under the clauses of the law and is at the mercy of the doctor’s decision. Giving women that agency has been a long-standing battle. And even in addition to that, there so ways in which the law remains deficient, unclear or impractical.
Sex selection and the MTP Act: Are they related?
A common misconception is that abortions are or should be restricted by a strict MTP Act to prevent cases of female foeticide. We must understand that female foeticide is a separate issue altogether, and is covered by the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT), which prevents sex-selection and disclosing the sex of the foetus to the parents (doing so would mean incurring heavy punishment).
The PCPNDT Act also regulates pre-natal diagnostic techniques and genetic counselling in a way that disfavours eugenic practices. Even though there is some overlap between the two Acts, the issues of abortion and female foeticide are distinct and shouldn’t be confused.
Expanding the provider base for abortions
Coming to the MTP Act, as of now, abortions can legally only be provided by experienced OB-GYN specialists. This is because when the MTP Act was first introduced in the 1970s, the standard for providing abortions was a D&C (dilation and curettage), a surgical method that has since lost popularity due to the advent of Manual Vacuum Aspirations (MVAs) and Electric Vacuum Aspirations (EVAs), which are both now preferred for first trimester abortions.
MVAs and EVAs are much simpler and less invasive procedures, and require fairly basic training that could easily be given to any Registered Medical Practitioner (RMP – basically an MBBS graduate). It doesn’t necessitate the strict specialisation requirements as it did 50 years ago, but the new Bill has made no changes on this front.
That aside, the current most popular method of abortion in India is MMA – Medical Methods of Abortion – known for being cost effective and easy to administer. MMA essentially involves prescribing a combination of two medicines that are taken orally. Under the current legislation this can be provided by RMPs, but it’s something that nurses, auxiliary nursing midwives (ANMs) and AYUSH practitioners could be trained to do as well. Studies have shown that such ‘task-shifting’ has high rates of success. This would be especially useful in rural and inaccessible areas, where skilled surgical and anaesthetic facilities are scarce.
This manner of decentralising and expanding the provider base of abortions in India has been recommended by expert panels, and was also advocated by the MoHFW in their proposed amendments to the Act in 2014, but was still not implemented.
The suggestion to expand the provider base may be misconstrued as a provision that would dilute or weaken the standard of healthcare that hospitals currently provide. The argument here is not against systematic improvements in public healthcare – it is in conjunction to the demand for better infrastructure, higher funding and more speciality seats.
We are a long way from having enough specialists to provide a high standard of obstetric care to all Indian women. Training MBBS graduates for relatively simpler abortion procedures is to provide these services to those who do not have the option for speciality care in the first place.
The impracticality of newly introduced provisions
In rural areas where hospitals are hard to come by, it’s even unlikelier that one might make it to a gynaecologist on time. Keeping such rural limitations in mind, the new Bill has increased the gestational limit from 20 weeks to 24 weeks – a welcome change – but the law still reeks of a strong bias of privilege.
For pregnancies that are in their third trimester – that is, past 24 weeks – the 2020 Bill requires that a single Medical Board be set up in the respective states/UTs, that will diagnose such candidates to decide whether or not they require an induced abortion. While the practicality of such extra checkpoints is debatable even in an urban context, it is far from reasonable to expect that in a remote set up where access to even basic healthcare is severely restricted, a pregnant woman would have to go out of her way to seek permission for surgery from a state board.
The more tedious the process of approvals and requirements is, the more delays we can expect – which, especially going into the third term, can mean increased risks for the person seeking the abortion, not to mention that the possibility of multiple invasive examinations can be intimidating and harrowing for the patient in question.
Providing a framework for minors seeking abortions
The MTP Bill 2020 states that “No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.” This essentially means that the woman’s confidentiality is preserved – and breaching this confidentiality is grounds for imprisonment and/or fining.
However, this is a conditional sort of mercy – it doesn’t apply to minors. This isn’t directly stated, but is rather the result of two legal discrepancies.
The first is this. According to the law, a female under the age of 18 cannot consent to an abortion. Instead, it requires the consent – and therefore prior knowledge – of a parent/guardian. Especially for early or first trimester abortions, this roadblock can prove counterproductive, making the system unapproachable to a teenage girl seeking a safe abortion who might not want to disclose this information to anyone other than her doctor.
The second discrepancy is based on the fact that under Section 375 of the IPC, sexual intercourse with a minor (regardless of the status of consent) is considered statutory rape. According to the Protection of Children from Sexual Offences Act, 2012, under sections 19 and 21, if a person has knowledge that a sexual offence has been committed against a minor, they must report it to the police, failing which they may be imprisoned for up to six months and/or fined.
So if an underage girl were to approach a doctor for the purpose of procuring an abortion, her doctor would be legally bound to report it as penetrative sexual assault – something the girl might not want. What could’ve remained a private matter inevitably becomes a matter of the state.
We must also consider the consequences of an Act that doesn’t guarantee such security to minors, thus making legal abortion services more inaccessible to them. Inaccessibility to safe abortions doesn’t mean people won’t abort – it means they will opt for unsafe abortions instead.
While these are the more glaring issues within the law, there are still some less conspicuous details that are ignored by the current legal framework. For example, perhaps a more compassionate law would have additional provisions for individuals citing difficulties such as adverse domestic circumstances, abuse and disabilities. It could be as simple as granting them access to procure late abortions within the 20-24 week gestational period (a provision that, in the 2020 Bill, is reserved only for cases of rape, substantial foetal abnormalities, or grave injury to the woman’s health).
As pedantic as it sounds, due consideration could also be paid to the language the law uses – the term ‘pregnant person’ could replace ‘pregnant woman’, or ‘foetal anomaly’ could be used instead of ‘foetal abnormality’. Such changes have been implemented in the past – the MTP Act (Amendment) 2002 changed the word ‘lunatic’ to ‘mentally ill person’, and the 2020 Bill has changed the word ‘husband’ to ‘partner’ so that the marital status of the woman is no longer an issue.
As a whole, the Indian MTP Act is much more liberal than the abortion laws of most other countries. With the relaxation of RMP approvals, extension of the gestational limits, and subsidised public healthcare, we might be under the impression that a safe and legal abortion in India is easy to get – but a recent Guttmacher Institute Report found that in 2015, an estimated 78% of abortions in our country happened outside of health facilities, the large majority of which were likely illegal (the report cites onerous certificate regulations of private providers and poor public understanding of the law, among other factors).
With all the ways in which abortion in India remains inaccessible to millions, it is imperative that we provide a legal support structure that eases the process. While this Bill is definitely an upgrade from the Act as it currently stands, there’s still a large scope for improvement – and the people of India deserve as much.
Shamira Sibal is a third-year medical student and a member of ISAY (India Safe Abortion Youth Advocacy group).