This article has been authored by Ramyani Bhattacharya, a student at KIIT School of Law.
Abortion, all over the world, remains a sensitive issue, even a taboo in some countries. In India, despite the extension of abortion deadline, importance given to privacy and inclusion of unmarried women in the Medical Termination of Pregnancy (Amendment) Act, 2021, it fails to recognise the choice of women. Abortion is legal, but only on the basis of needs, not rights, which is an important distinction to take into account. Notwithstanding India’s steady pace in ensuring safe abortions for women, recognition of women’s choice and agency regarding abortions is of paramount importance now, so as to move towards a society honouring individual freedom, safety and reproductive rights of women.
A Brief History of the Legality of Abortions
Before 1971, abortion was criminalised under Section 312 of the Indian Penal Code, 1860, representing it as “intentionally causing a miscarriage”, punishable with imprisonment and/or fine.
All over the world, the1960s and 1970s, saw liberalisation of abortion laws. The Shah Committee, appointed by the Government of India in 1964, carried out a thorough review of socio-cultural, legal and medical aspects of abortion, and in 1966 recommended legalising abortion on both compassionate and medical grounds. The Medical Termination of Pregnancy Act, 1971 was a result of this which has since, gone through a revision in 1975 to make services readily accessible, an amendment in 2002 and introduction of additional regulations in 2003 to facilitate better implementation of the said act and to provide the basic legal framework for safe abortions to women.
The Medical Termination of Pregnancy (Amendment) Act, 2021 is certainly an upgradation from the previous one, since it extends the upper gestation limit for legal abortions and makes a few other important changes which are certainly welcome, but fails to address the basic concern of the pro-abortion rights or pro-choice arguments.
Abortion in India is legal, but conditional. It is possible only under certain conditions, such as (i) harm to the women’s life, physical and/or mental health, including pregnancy caused by rape and failure of contraceptives and (ii) severe abnormalities of the foetus.
It is understandable from the above criteria that an abortion can only be permitted on a needs basis, that is, only when there is “severe mental or physical harm of the women” involved. A woman can never choose abortion.
It depends upon the doctor whether the woman may or may not have an abortion, in the sense that women often have to convince doctors of their mental anguish. This is evident from the wordings of Section 3(3) of the MTP Act, 1971,
“In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.”
It is true that such scrutiny by the doctor is important, especially in cases where the woman may be forced to consent to an abortion but, on the other hand, it places considerable power in the hands of the medical practitioner. However, women often have to face uncomfortable questions. If unmarried, it is assumed that she would want an abortion but that is not the case when the woman is married.
Moreover, it also is unclear if transgender persons or any other person who is capable of conceiving, are covered under the said amendment. It is important to note that some people, not necessarily cisgender women may require to terminate pregnancies and it is unclear whether they will be allowed.
The Supreme Court in the case of Suchita Srivastava v. Chandigarh Admn. had held that reproductive rights of women fall under the dimension of “personal liberty” under Article 21 of the Constitution of India. Women’s right to privacy, dignity and bodily integrity should be respected, which means that there should not be any unreasonable restrictions against women exercising their reproductive rights.
In the case of Meera Santosh Pal v. Union of India, a lady in the 24th week of pregnancy had filed a petition to undergo abortion, because of severe abnormalities in the foetus which could endanger her life. After recommendations from the constituted medical board, the Supreme Court had allowed the termination.
But, in many cases, the Supreme Court didn’t allow abortion because there was apparently, no risk to the mother or the foetus. In the case of Savita Sachin Patil v. Union of India, a woman in the 26th week of pregnancy had approached the Supreme Court for medical termination of pregnancy. The medical board constituted submitted the report that there was no risk to the life of the woman and that the foetus, if born was “likely” to have mental and physical challenges. The Supreme Court, thus, declined the request of the woman.
In a country, where some people still wonder how husbands “allow” their wives to have an abortion, the MTP (Amendment) Act, 2021 provides women the autonomy, based on some criteria. Keeping in mind, the fact that an abortion may very well be traumatic for some women, the mere assumption that giving up motherhood “should” be a case of mental anguish and that a woman, at her own will cannot have an abortion, is certainly regressive. Besides, the criteria enlisted in the Act rules out any other possibility which might make a person opt for an abortion. Apart from situations of medical complications, the choice of having or not having a child should entirely rest upon women or the person choosing to terminate their pregnancy.
Even if legal, safe abortions are not accessible to all. As many as 67.1% of abortions in India were classified as unsafe, according to a research conducted in nine states of India in 2019. Accessibility is a major issue in remote areas as well, where even basic health-care is not available. The research also found strong association of unsafe abortions with specific socio-demographic factors like younger maternal age, lower socio-economic condition, rural residence etc., healthcare service utilisation, family characteristics and family planning. Now, only trained and experienced specialists can provide an abortion, whereas there is almost a 75% shortage of qualified doctors.
Abortions can be performed in many different ways which can be done with basic training too. In 2015, the World Health Organisation released a guideline with evidence based recommendations on the range of health-care providers who can effectively and safely perform abortions and provide post-abortion care. A broad-based stakeholder consultation was organised by the Ipas Development Foundation and Human Reproduction Programme, WHO, to compare the Indian scenario with the recommended global norms. Over 30 experts recommended that India make the necessary legal and policy changes to permit nurses and non-allopathic doctors to offer early abortion services, after suitable training. Hence, any trained registered medical practitioner, or even AYUSH practitioners and midwives can provide an abortion within nine months. It should be noted that a similar clause was included in the MTP (Amendment) Bill, 2014 but was dropped in the latest amendment Act. Expansion in the above issue is very important in enlarging the provider base and making safe abortions accessible in rural areas.
If we consider the case of teen pregnancies, for an abortion, she would require the permission of her guardian which may turn out to be a severe problem. Any teen, over the age of 16 can be reasonably assumed to have developed an understanding of her well-being and can consent to an abortion. Since permission from a guardian is mandatory, several go for unsafe abortions. In the research mentioned before, “teenage women (aged 15–19 years) were found to have the highest risk of abortion-related death in addition to rural residence and lower socioeconomic status.”
Given the difficulties associated with abortion, many women, especially minors go for unsafe and illegal abortions which could prove to be very harmful for them. In order to make safe abortions accessible to all, the law needs to decentralise, expand and include.
Access to safe abortions has been recognised “a human right” by many international frameworks. For the past five decades, the world has seen a steady pace towards the liberalisation of abortion laws around the globe. Since 2000, 28 countries have expanded the legal grounds of accessing abortion. Many countries provide abortion on request with varying limits of gestational period. However, the bigger picture is slightly grim. As many as 26 countries prohibitabortion completely. A few months ago, huge protests had erupted in Poland as the government had attempted to ban abortions altogether. Even some states in the USA, such as Alabama prohibit abortions completely. India, on the other hand is making steady progress in liberalizing abortion laws, specially through the latest MTP (Amendment) Act, 2021.
Conclusion and Suggestions
In brief, it is imperative that women’s choice and agency in reproductive matters, which is a fundamental right, must be upheld at all cases. It is the responsibility of the government to provide for safe abortions with the consent of the woman, without unnecessary criteria deciding when they can and cannot opt for an abortion. Restricting abortions does not necessarily reduce the number of pregnancies or abortions, but it exposes many women and others capable of conceiving, to unsafe conditions and endangers lives.
The latest amendment Act is certainly very crucial but it must be revised further to accommodate and acknowledge the rightful agency of women and anyone who can conceive, over their bodies. It should be more inclusive and cover everyone who is able to conceive, regardless of their gender identity. It must introduce abortion on request with no gestational limit, where they would not have to provide any explanation regarding their decision, barring medical complications. Expansion of the provider base of safe abortions in order to enhance accessibility, making guardians’ permission non-mandatory in case of teenage pregnancies over the age of 16 and organising effective awareness programmes directed towards anyone who is able to conceive, are also some steps towards the right direction.