India’s Abortion Laws: How Far They’ve Come, and How Far They Still Have to Go
The Supreme Court is currently hearing a petition to expand the current restrictions placed on accessing safe abortions under the Medical Termination of Pregnancy (MTP) Act, 1971. One of the demands of the petition, filed by gynecologist Dr. Nikhil Datar, is increasing the gestational limit of 20 weeks — before which a woman can (on some conditions) have an abortion, and after which, she has to seek legal recourse to be able to have one. On this matter, the Ministry of Health and Family Welfare on 19 September said, via an affidavit, that the government was “not inclined to legislate.”
However, experts — doctors, lawyers, and activists — believe change is necessary, to keep up with advancement in medical science, and in social norms about women’s bodily and reproductive autonomy.
As it reads today, the MTP Act allows a woman to get an abortion until 20 weeks of pregnancy. Between conception and 12 weeks, a woman seeking an abortion needs the permission of a medical provider who has to certify that one of the four conditions holds true: (1) carrying the pregnancy any further would pose a risk to the woman’s mental or physical health; (2) there is a risk that the child would be born with physical or mental abnormalities; (3) the pregnancy was caused due to rape; and/or (4) the pregnancy is the result of “contraceptive failure” between married woman or her husband.
After 12 weeks and up to 20 weeks, at least two providers are needed to form this opinion. The MTP Act doesn’t say anything about what a woman or a medical practitioner is to do in case the former needs or wants an abortion after the 20-week cutoff. In the absence of a legal framework, women and girls have been increasingly approaching the courts to obtain approval for abortions after 20 weeks of pregnancy, thereby creating a misconception that it is the MTP Act that requires them to do so.
In July 2017, a 10-year-old rape survivor had approached the Supreme Court to ask to abort her 32-week-old fetus; she was denied based on the opinion of a court-appointed medical board. The case caused quite a stir in the country, and, sensing the need for a platform where women can ask for an abortion in exceptional cases above 20 weeks of pregnancy, the Supreme Court directed the government to set up permanent medical boards in states and union territories to examine such cases. These cases have been inconsistent in their verdicts: the 10-year-old girl was denied because the court thought an abortion would risk her life; but, in 2018, the Delhi High Court allowed a 16-year-old rape survivor to abort her 22-week-old fetus because of the mental stress it was causing her. This process has also failed to clarify whether women and girls can approach medical boards directly, without filing a petition with the court system, or whether the board’s approval is required for all cases beyond 20 weeks.
This current scenario highlights the policy limitations that curtail women’s access to safe abortion services and their right to sexual and reproductive autonomy. The right to choose whether to carry a pregnancy to its full term is central to women’s fundamental rights to privacy, bodily integrity, dignity, self-determination, and health, as recognized by Article 21 of the Constitution. But, nearly half a century after legalizing abortions in what was then considered quite a liberal manner, “as it stands today, abortion is not a women’s right; it is a conditional right,” says V.S. Chandrashekar, CEO of the Foundation for Reproductive Health Services. He explains that currently, it is not the woman but the medical provider who determines if a woman meets the conditions mentioned in the MTP Act and then decides if she can be provided with an abortion. He says, “The MTP Act of 1971 was framed from a public health, population control, the need-to-protect-doctors perspective and not from a women’s health and rights perspective. Hence, there is a need to overhaul the MTP Act to make it women-centric, which recognizes and respects women’s autonomy, rights, and choices.”
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Overhauling the MTP Act
The Swaddle spoke to two experts at the forefront of the movement rallying for women’s absolute right to safe abortions — Chandrashekhar, and Dr. Kalpana Apte, secretary-general of the Family Planning Association of India — in an attempt to take stock of what has been accomplished, what obstacles stand in the way of progress, what action is needed immediately, and what the movement’s vision is going forward.
Extending the 20-week gestational cutoff
Increasing the 20-week cutoff is one of the most pressing needs as far as amendments to the MTP Act go. Apte says abortion should be legal up to 28 weeks at least — without exceptions or conditions, and solely based on a woman’s choice. The main argument presented against this has been that abortion becomes increasingly risky as pregnancy progresses, but “when the 20-week limit was decided, it was the early 70s. Now, in this millennium, medical science has progressed far beyond it,” Apte says. In 2019, Chandrashekar explains that an abortion provided using recommended methods by a trained provider in a hygienic setting is one of the safest obstetric procedures. So, the goal should be to ensure that each of those pieces — methods, providers, facilities — fall into place, instead of restricting women’s access to abortion.
“The risks associated with a safe abortion are far [fewer] than the risks associated with normal childbirth. There is general consensus, including in the medical community, that the gestational limits need to be extended, since a number of severe fetal abnormalities can be identified after 20 weeks, thanks to the advancement in medical technology,” Chandrashekar says. In such cases, it is essential that women have the option to abort — the trauma of carrying a pregnancy to full-term, knowing full well that it will result in a child who will not survive, can be grievous, which is why he suggests that the gestational cut-off be extended to “24 to 26 weeks in case of fetal abnormalities.” Apte is less restrictive. She believes in such cases, a woman should be allowed to abort at any point when the abnormalities are discovered; there should be no limit. Chandrashekar agrees with completely removing a gestational limit for abortions in the cases of “minor and vulnerable women, especially survivors of sexual abuse.”
Making the right to abortion unconditional
The two are on the same page about one thing, though: up to the current legal limit to get an abortion — 20 weeks — there should be no conditions under which an abortion can be sought. A woman not wanting to continue her pregnancy — for whatever reason, and without the medical provider’s opinion holding any weight — should be enough. Chandrashekar says this should be especially true up to 12 weeks, until which point abortions can be carried out by women through safe, cheap, and effective pills.
“However, I don’t think the state or society would be willing to do that at this point in time,” he says, suggesting a few changes that would go a long way in increasing comprehensive abortion care access: contraceptive failure as a ground for abortion should be available to all women, not just married women, and the requirement of the opinion of two providers to approve second-trimester abortion should be done away with.
Separating overlapping laws
Another demand put forward by doctors and activists is that no existing or new law should overlap with, or supersede, the MTP Act — like the current Protection of Children Against Sexual Offences (POCSO) Act does. POCSO mandates that anyone who is aware of the sexual abuse of a child must report it to authorities, or be prosecuted. So, if a girl below the age of 18 seeks out an abortion, the medical provider is obligated to report it — even if the sex was consensual or if the girl doesn’t want it reported. “The POCSO Act also mandates that a health care provider cannot deny care; if he/she denies care, they can be prosecuted. This makes provision of abortion care to minors a bit tricky and Police and Child Welfare Committees also get involved. Many providers do not want to take on the potential hassles of dealing with law enforcement and courts and therefore may stop providing abortion care to minors, which makes the situation worse for them,” Apte explains.
Under the MTP Act, currently, abortions below the age of 18 require the consent of a guardian; Apte believes this age should be reduced to 16, and no consent should be required but the girl’s — considering how more than 50% of girls have sex for the first time between the ages of 15 and 19 today. “There is a need to examine this issue critically and make relevant changes to the POCSO Act [as well]; issue guidance and orient law enforcement and child welfare officials on the MTP Act; and, the need to respect confidentiality,” she says.
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Another law overlapping with the MTP Act is the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act that bans prenatal sex determination. It was implemented in 1994 by the government in an attempt to curb the high rate of female feticide, which sadly, is not on the decline. Between 2001 and 2011, India’s child sex ratio actually widened from 927 to 919 females per 1,000 males. “Unfortunately the manner in which PCPNDT Act has been implemented has resulted in stigmatizing abortions, abortion providers and women who seek abortions. This has created the impression that abortion is illegal [and] that all abortions are for sex selection — resulting in access to safe abortion getting adversely impacted. There is a need to clarify this and ensure that the implementation of PCPNDT does not adversely impact access to abortions,” Chandrashekar says.
He explains that most abortions in India happen in the first trimester, i.e. before 12 weeks (81% of all abortions in 2015) through medical abortion (MA) pills; the sex of a fetus can be detected by sonography only around 13 to 14 weeks. “Most abortions in India [take place] for reasons which the MTP Act allows abortion for. Only a very small percentage could be a result of sex determination,” he says, adding that the simplistic understanding that regulating or reducing access to abortion care will reduce sex selection needs to change.
In a recent study conducted by the Pratigya Campaign, it was found that chemists have stopped stocking medical abortion drugs in Rajasthan and Maharashtra due to their overregulation, and the mistaken belief that MA drugs can be used for sex selection. “If access to abortion care is reduced, women who need them would be forced to seek care from illegal and untrained providers risking their health and lives,” he adds. Instead of forcing women into harm’s way by restricting their choices, Chandrashekar says the way to curb gender-biased sex selection is by addressing underlying issues of gender inequality which results in son preference. “These norms and mind-sets need to be changed.”
Expanding the provider base for abortion care
The dearth in number and quality of abortion providers is also a key problem the MTP Act needs to tackle in order to reduce unsafe abortions. One key — and hotly debated — way to do that is by expanding the provider base from only allopathic doctors to include Nurses, Auxiliary Nurse Midwives (ANMs), and AYUSH (Ayurveda, Yoga & Naturopathy, Unani, Siddha, Sowa Rigpa and Homoeopathy) providers — for at least first trimester abortions. Once again, the specter of unsafety and misuse arises in the debate, which Apte dismisses immediately. “Mid-level providers and doctors from AYUSH are perfectly capable and can be trained to provide medication abortion. I don’t see any rational or valid argument,” she says adding that “there are mid-level providers in Bangladesh and Nepal providing even [Medical] Vacuum Aspirations [the primary method of abortion beyond 12 weeks]. These are simple procedures and we should train these doctors as well as nurses in these procedures.”
Chandrashekar breaks down why this is crucial: In 2019, there are only 60,000 to 70,000 legal abortion providers in the country, he estimates, most of whom are in urban areas. This is “woefully inadequate” for a country of our size, which is estimated to have 15.6 million abortions annually. “Even the World Health Organization recommends task sharing in the provision of medical abortion with mid-level providers in the first trimester,” he points out, which, if India were to implement, would exponentially increase its provider base and offer more choices and chances for women to access safe abortions.
It’s not even a very difficult change to bring about. In India, several nurses, ANMs and AYUSH providers are already trained as Skilled Birth Assistants (SBAs) and, by that virtue, are allowed to administer life-saving drugs, calculate the expected date of delivery, assess gestation age for antenatal women, conduct a normal delivery, and identify complications during pregnancy, among other things. “In short, there are already Nurses, ANMs, [and] AYUSH providers in the public sector that are allowed to use allopathic drugs or perform procedures. It’s just a matter for extending this to first-trimester abortion care,” Chandrashekar says.
Other ways in which the provider base should be expanded include removing the provision that requires health facilities to specifically register to be able to provide MTP services — just the basic certification that all clinics require should be enough, experts argue — and allowing MBBS doctors to prescribe and provide medical abortions without any additional certification requirement. (Currently even to provide medical abortion, all MBBS doctors have to go through a 12-day training program in a government or government-approved medical facility.) Chandrashekar says the goal here is to “create a cadre of medical abortion providers who can prescribe and provide medical abortion after a simplified training and approval process.”
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The present, past, and future of the MTP Act
Most of these recommendations have been accepted by the Ministry of Health and Family Welfare after a series of consultations with experts; the ministry has since proposed amending the MTP Act and circulated a draft bill for public comments in 2014. At the time, the amendments included making abortion an unconditional right for women until 12 weeks of pregnancy, increasing the gestational limit on abortion for vulnerable categories of women, and extending the condition of ‘failure of contraception’ as an indication for abortion to include unmarried women.
However, five years later and with no approval from the Union Cabinet still, the government recently told the Supreme Court that it has been re-working the draft bill and that it has been sent for inter-ministerial consultation. “There have been indications that it will be tabled in the parliament soon, however, we are not sure if some of the key proposals like making abortion a right in the first trimester; allowing contraceptive failure as an indication for all women … and expanding the provider base to include Nurses, ANMs and AYUSH providers for first-trimester abortion services will be included,” Chandrashekar says, adding that “it’s anybody’s guess” what the latest draft bill says, or when it will be tabled.
But there’s not much love lost between those lobbying for a progressive MTP Act suitable for the 21st century and the government in charge of the lawmaking — there is a sense of trust and cooperation. When asked what she thought of the Ministry’s statement to the Supreme Court during Dr. Datar’s petition hearing — it regressively described abortion as “harm designed by one’s own mother” — Apte says she found it strange because in her work in the space of increasing safe abortion access for women, she “didn’t get these kinds of vibes” at the government level.
“There is a high level of commitment for access to safe abortions seen at the Ministry level,” she says, explaining that the Ministry’s statement, unfortunately, was coming from the Indian Penal Code itself. “Sections 312 to 316 of the IPC make it a punishable offense to procure a miscarriage whether done voluntarily or forcibly. Section 312 penalizes miscarriage ‘voluntarily’ caused either by (i) a woman herself or (ii) some other person with her ‘consent.’ The MTP Act provides a way out of this particular legislation. So, I don’t think that at the policy level there is any backtracking,” she says, while simultaneously illuminating how the outdated IPC is also long overdue for an overhaul — especially sections that contradict, and therefore, obfuscate, the guidelines around getting an abortion legally and safely.
Chandrashekar agrees: “The law as it stands is still relatively liberal and it’s been so since 1971,” pointing out the many ways in which the government has shown dedication to improving safe abortion access over the years. From being one of the first few countries in the world in the 70s to legalize abortions to proactive steps India has taken, especially since the 2000s to expand access to abortion. These include “introducing new technologies for early abortion like Manual Vacuum Aspiration and Medical Abortion, approval of combi-pack medical abortion drugs … [and] allocating resources under national health mission for comprehensive abortion care. States like Bihar have also launched Yukti Yojana, a public-private partnership where women can access abortion care free of cost from accredited private providers,” he says. Apte thinks of the MTP Act as one of the most progressive legislations delivering women’s right to choose to terminate an unplanned pregnancy; she says “it is an Act that has helped millions of Indian women to exercise their right to safe abortions.”
It’s true; the MTP Act has, in fact, come a long way and has only improved and expanded with time to take more women under its scope. The contribution of unsafe abortions to maternal mortality has declined from 13% to 8%, and the number of unsafe abortions, i.e abortions performed outside a facility using methods that are not recommended, are now estimated to be only 5% of all abortions in the country.
But with due credit given and kept aside, “it’s time to further liberalize [the Act] keeping the interest of the women at the center,” Chandrashekar says. Almost half a century after the legalization of abortion, unsafe abortions – performed in unhygienic conditions by untrained providers – are the third-largest cause of maternal death; 56% of all abortions in India are unsafe, IndiaSpend reported in 2017, due to which 10 women die every day.
The MTP Act has miles to go before it reaches the place experts and women want it to reach — an Act that keeps the interest and safety of women at its center, and the State, out of it. “A strong, progressive Act would make abortion a woman’s right and allow her to terminate an unwanted pregnancy if she chooses to. It would respect a woman’s choice and her ability to make the right decision regarding her body and health,” Chandrashekhar says, “and not leave it in the hands of a provider to decide for her or impose specific conditions for termination.”
When asked how she visualizes the ideal MTP act, Apte says, “as long as we would need legislation to regulate abortions, it would be always conditional. In an ideal world, the law should not be required to facilitate access to health care. I see safe abortions as a fundamental health right.”