“No woman can call herself free when she does not own and control her own body”
-Margaret Sanger
Abstract:
Access to abortion and the prevention of maternal mortality are both essential human rights, according to the UN Human Rights Committee. Despite the fact that India decriminalised abortion in 1971 and has a comprehensive framework for terminating pregnancies, unsafe abortions are the country’s third highest cause of maternal fatalities, accounting for 13% of all maternal deaths each year[1]. The government’s broader involvement in providing safe, high-quality health care to poor and vulnerable women should be reviewed and evaluated so as to realise their expanded role in providing abortion care. Women and girls continue to face major obstacles to fully exercise their reproductive rights, including inadequate health care and denial of complete body autonomy. Hence through this research paper, one can understand the Medical Termination of Pregnancy(Amendment) Bill, 2020, its provisions and shortcomings. The researcher has also made recommendations for how the current shortcomings might be addressed and improved.
Keywords: Abortion, Pregnancy, Termination, Rights, Body Autonomy.
Introduction: An abortion can be termed as a medical procedure that terminates a pregnancy. Abortion is a phenomenon that has been debated since the beginning of time and is still a contentious issue today which combines numerous factors such as religion, ethics, medicine, and the law. It is a basic healthcare requirement for millions of women and others who can conceive a child . Worldwide, an estimated 1 in 4 pregnancies end in an abortion every year.[2]
Generally, there may be various reasons[3] to terminate a pregnancy such as
- for the sake of the mother’s health(including her mental health)
- where a pregnancy is the result of a crime(rape, incest or child abuse)
- where the health of the child is in jeopardy such as serious genetic or mental defects
- for social reasons, including financial burden and situation of the mother
- as a matter of government policy (regulating population size, etc).
The right to abortion is seen as both, a fundamental and a human right. The Supreme Court of India explicitly stated in Justice K.S. Puttaswamy v. Union of India[4] that it is a constitutional right of women to make reproductive choices as part of their personal liberty under Article 21 of the Indian Constitution and hence is also a qualified right under the Medical Termination Act of 1971.
While the necessity for abortion is prevalent, people who require abortion services may not always have access to safe and legal abortion services. In India, around 56 percent of abortions are classified as unsafe.[5]Due to various social, economic, and logistical hurdles, most women in the country, notably those in rural areas, resort to unsafe abortions. Another factor that hinders women from accessing abortion care at licenced institutions is stigma. Hence it is important for the relevant demography to be aware about the safe and legal resources provided by the Indian Constitution.
Currently, The Medical Termination of Pregnancy (Amendment) Bill, 2020 is one of the most crucial laws with regard to reproductive rights in India.
Background: Until 1971 abortion was criminalized under Section 312 of the Indian Penal Code, describing it as intentionally “causing miscarriage’. Except in circumstances when it was done to save the mother’s life, it was a crime punishable by seven years in prison and/or a fine. Around the 1960s, the country experienced a surge in illegal and unsafe abortions, putting the mothers’ lives in jeopardy. The Ministry of Health and Family Welfare was alerted, and a committee – called Shantilal Shah Committee[6] was formed to address the situation, as well as the process of establishing a legal framework for abortion. After the committee’s recommendations were debated in the parliament, the government passed the Medical Termination of Pregnancy Act, 1971[7] , facilitating India’s abortion regulations. India became one of the first few countries to decriminalize abortion in the world as only 15 countries had legalized abortion in 1960s and hence the Act, often considered as “ ahead of its time”, was applauded by all.
As it was written in 1971, when technology was not advanced and social circumstances were different, there was a need to revise the MTP of 1971 as the society had progressed and technology had improved since then.
Hence, The Medical Termination of Pregnancy (Amendment) Bill, 2020 was passed in the Rajya Sabha in March 2021 and it presently awaits the president’s assent to become a law.
OBJECTIVES:
- To analyze The Medical Termination of Pregnancy(Amendment) Bill, 2020 vis-à-vis The Medical Termination of Pregnancy Act, 1971.
- To study the shortcomings of the current provisions and to recommend changes to bridge the gap.
- To understand Abortion Laws in the International scenario.
Methodology:
The descriptive, observational and secondary quantitative data-based analysis is conducted to understand the legal provisions for terminating a pregnancy in India. The data collected is mostly from sources of various court judgements, journals, articles, annual reports published by websites of different governmental and non-governmental agencies and organizations. Qualitative research methods were also touched upon to understand opinions of professionals on this topic.
.Literature Review: Existing literature in form of articles, documents, research and judgements have been referred to for the purpose of this paper.
- THE SOCIO-CULTURAL ASPECT OF ABORTION IN INDIA: LAW, ETHICS AND PRACTISE by Bhavish Gupta and Meenu Gupta (2016): The above paper talks about abortion as an important human right and the development of the first MTP Act in 1971. It explains the social, ethical and cultural aspects of abortion and how abortion laws were received by the public at large. It also mentions the shortcomings of the 1971 Act and how new amendments were the need of the hour.
- The incidence of abortion and unintended pregnancy in India, The Lancet Global Health (2015): This research paper was the first study to track the nationwide rate of abortion in India in order to raise awareness about the lack of maternity care. By combining data such as the number of facility-based abortions (surgical and medication), the researcher approximated the total number of abortions in the country as a whole, and gave numerical meaning to previously unclear and undervalued statistics.
- Various articles from esteemed newspapers and websites such as The Quint, Livemint, The Wire, Amnesty International, etc were referred to analyse the new amendments to the MTP Act and also understand the Abortion laws in other countries.
I)Analyzing The Medical Termination of Pregnancy(Amendment) Bill, 2020 vis-à-vis The Medical Termination of Pregnancy Act, 1971
Prior to the change, abortions performed during the first 12 weeks of pregnancy required the approval of one doctor, and those performed between 12 and 20 weeks required the approval of two doctors. Abortion after 20 weeks did not have any provisions in the MTP Act of 1971.
However, the amendment now allows abortions up to 20 weeks with only one doctor’s advice rather than two and two physicians’ advice between 20 and 24 weeks for specific instances such as rape survivors, incest sufferers, and other vulnerable women. By establishing State-level Medical Boards, the Bill also grants States the ability to decide whether a pregnancy may be terminated owing to foetal abnormalities after 24 weeks. The said Board is to consist of a Gynaecologist, Radiologist/ Sinologist, Paediatrician, and other such members notified by the concerned State Government.[8]
Table 1: Changes proposed in conditions for terminating a pregnancy at different gestational periods
| Time since conception | Requirement for terminating pregnancy | |
| MTP Act , 1971 | MTP (Amendment) Bill, 2020 | |
| Up to 12 weeks | Advice of one doctor | Advice of one doctor |
| 12 to 20 weeks | Advice of two doctors | Advice of one doctor |
| 20 to 24 weeks | Not allowed | Two doctors for some categories of pregnant women |
| More than 24 weeks | Not allowed | Medical Board in case of substantial foetal abnormality |
| Any time during the pregnancy | One doctor, if immediately necessary to save pregnant woman’s life |
Fig. 1.1 Sources: PRS India[9]
In Dr. Nikhil D. Dattar & Ors. v. Union of India,[10] the petitioner’s foetus was diagnosed with the congenital complete heart block in the 24th week of the pregnancy and the doctor suggested her to undergo an abortion but due to the shortcomings of MTP, 1971 which didn’t have any provision for termination post 24 weeks, she had to directly approach the Bombay High Court. The Hon’ble High court eventually dismissed the petition and she was unable to terminate the pregnancy and that in my view is quite unfair to the mother as she has a right to decide if she wants to continue a pregnancy where the child may be handicapped or incapable.
In addition to extending the time limit for terminating pregnancy, the Central Government has taken a progressive stance by referring to a “woman” and “her partner” rather than a “married woman” and “her husband” , demonstrating that the woman’s marital status is irrelevant and recommending that an unmarried woman and her partner be treated the same as a married woman and her spouse when it comes to obtaining an abortion due to contraceptive failure. In terms of law, this confirms the rationale of domestic violence legislation, which makes no distinction between a woman’s rights and protections in a marriage or a live-in relationship. It also includes a privacy clause, making it a punishable offence for revealing the identity of any woman who is seeking an abortion.
II)Shortcomings of the current provisions:
The amendment states that the medical board should comprise of a paediatrician, a gynaecologist and a radiologist, however assembling such a board in India’s rural areas would be incredibly difficult because finding a gynaecologist is difficult in most parts of the nation, making the process inaccessible. India has one government doctor for every 10,189 people, against the World Health Organization’s (WHO) recommendation of a 1:1000 ratio. According to the Ministry of Health and Family Welfare’s 2019-2020 Rural Health Statistics Report, rural India, which is home to 66 percent of the country’s population, has a 70 percent shortage of obstetrician-gynaecologists. According to the NHFS 4 data, nurses or Auxiliary Nurse Midwife (ANM), Lady Health Visitor (LHV), Dai, or family members perform 47 percent of abortions in India.[11] Both, the Act and the Bill, specify that abortion should only be performed by gynaecologists or obstetricians and not by untrained persons in rural areas may continue to find it difficult to access facilities for safe abortions.
This Lancet( 1.2 fig) study[12] shows that maximum abortions take place outside the safe facilities.
According to several activists and gynaecologists, if the gestation period is increased from 20 to 24 weeks, it should be increased for all “kinds” of pregnancies, not just in cases of incest, rape, minor, etc, as this could help in some unavoidable circumstances, as well as because the bill does not explicitly state who can get an abortion after 20 weeks, and allowing the government to decide affects the person’s body autonomy. Only in circumstances where a Medical Board detects significant foetal abnormalities can a pregnancy be terminated after 24 weeks.
In case of rape or an abusive marriage, the survivor may take over 24 weeks to decide on an abortion and in such a case the only available recourse will be a writ petition as the bill doesn’t include such a scenario.
The Act and the Bill allows “pregnant women” to terminate pregnancies under certain conditions but it is unclear if transgender persons will be covered under the bill as it mentions termination of pregnancy only in case of ‘women’ and nothing about the third gender .The Transgender Persons (Protections and Rights) Act, 2019 recognises transgender as an additional gender in India.
Recommendations:
1)Increasing provider base
Many health professionals think that all doctors and nurses – not just gynaecologists – should be permitted to perform abortion services.
“While this is not the only solution, if we should make a small change in the MTP Rules to allow all MBBS doctors to provide medication abortion. This in itself will make a significant difference. We are robbing millions of women the right to access while doctors and nurses can actually provide safe abortion,” says Doctor Sheriar, an accomplished gynaecologist and Obstetrician. Based on the guidelines by World Health Organization , certain doctors and healthcare specialists have recommended that AYUSH (Ayurveda, Yoga & Naturopathy, Unani, Siddha, and Homoeopathy) practitioners, staff nurses, medical officers, and auxiliary nurses could provide medical abortions up to 12 weeks.
2) Granting complete autonomy to women
The Supreme Court in the landmark case of Suchita Srivastava[13] held that Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, is considered to include a woman’s right to make reproductive decisions. Article 21 protects a woman’s right to privacy, personal liberty, dignity, and bodily integrity, among other things. This emphasises the idea that all pregnant women have the freedom to choose and make an informed decision about their pregnancy, independent of the state and law. What is required is a push for a women-centric strategy rather than a doctor-centric one, as well as a move from need-based to rights-based legislation. Third-party authorization requirement is against human rights,” says Souvik Pyne, a reproductive rights activist with the YP Foundation. He adds that 80 percent of abortions in India occur in the first trimester, or 12 weeks, and that simply giving women autonomy will contribute to making it a more independent and safer process.
3)Inclusive Langauge
The 2020 Bill has proposed to include ‘partner’ instead of ‘husband’ along these lines, the term ‘pregnant person’ could replace ‘pregnant woman” as it would embrace the transgender community as well. Some medical studies have found that people who identify as transgender (and not women) may become pregnant even after taking hormone therapy to transition from female to male, necessitating termination services, and thus should be covered under this Act.
Fig. 1.3 The Lancet, 2015.
4)Family Planning and Sex Education
Proper family planning would reduce terminations leading from unintended pregnancies. In educational institutions, explaining the importance of contraceptives and sex education would help in reducing the stigma around topics like pregnancy and abortion And would eventually lead to a more informed demography.
5)Improved and accessible infrastructure
According to the Lancet report, 11.5 million of India’s 15 million abortions are performed outside of medical institutions. In India, 13 women die every day as a result of unsafe abortion-related reasons. MMA medications obtained from pharmacies and informal traders, rather than health facilities, are used in nearly three out of four abortions. According to the bill’s Statement of Objects and Reasons, there is a need to expand women’s access to legal and safe abortion services in order to reduce maternal mortality and morbidity caused by unsafe abortions and their complications. Shortage of basic infrastructure exacerbates the situation of the vulnerable person hence the government needs to revamp the maternity healthcare sector , make it more accessible and also spread awareness about the available facilities
6)Awareness about the existing legislation and reducing stigma
Thousands of deaths have occurred as a result of unsafe abortions, which are caused by a lack of understanding about the legality of abortion and the availability of safe procedures, as well as the social stigma associated with abortion.
According to research, more than 80% of women in India[14] are unaware that abortion is legal, which adds to women seeking abortions from unlicensed practitioners. Despite having an elaborate framework on this topic, most of the women are unaware of safe and legal options. Campaigns and awareness programs about abortion need to be conducted in the rural regions of the country.Its benefits should be discussed so as to reduce the stigma around the topic. There have been multiple incidents of women being denied abortions on “moral” grounds by doctors or being asked to bring parents or a partner along for the procedure. Unmarried and young women should not be ashamed or ostracised and their decision to terminate a pregnancy should be respected, irrespective of what their parents or partners say.
III)Abortion laws in the international scenario
According to the WHO, 40% of women of reproductive age live in countries with extremely restrictive abortion legislation, or in countries where abortion is legal but not available or accessible[15]. Despite a global trend toward modifying laws to prevent deaths and injuries, some nations, such as Nicaragua and El Salvador, continue to have harsh and discriminatory abortion laws that prohibit abortion in almost all instances.
Abortion is legal in the United States, since the historic 1973 case Roe v. Wade[16], the first abortion issue brought to the Supreme Court in US but Individual states, on the other hand, can control and limit abortion use. This has led to many conservative states having extremely restrictive reproductive rights, Texas is one of the states that prohibits abortions after six weeks of pregnancy. That’s a long time before many women even realise they’re expecting. . Until 2021, having an abortion in Mexico was considered a crime.
In Poland, a controversial near-total ban on abortion has taken effect. When a court judgement enabling the prohibition was released in October, it sparked massive outrage.Abortion is now only permitted in circumstances of rape or incest, or when the mother’s life is in peril. In conservative and dominant catholic regions, abortion rights still have a long way to go.
In Asia, three Asian countries prohibit abortions under all circumstances: Iraq, Laos, and the Philippines, while other countries allow it ( liberally or limited). Because abortion is widely permitted in the region’s two most populous countries, China and India, the majority of Asian women have considerably liberal access to abortion facilities and reproductive rights.
It’s worth noting that India was the first country to implement legislation allowing mothers and their partners to take paid leave after a loss or stillbirth, with New Zealand following suit in 2021. The Maternity Benefit (Amendment) Act of 1961, in particular, expands paid miscarriage leave to six weeks. Even now, countries such as the United Kingdom, the United States of America, Brazil, and Germany do not provide a pregnant woman with the same level of autonomy as India, showcasing an attempt to respect reproductive rights.
Conclusion:
More than 50 nations have amended their laws to allow for wider abortion access in the last 25 years, recognising the critical role that safe abortion plays in preserving women’s lives and health. It is laudable that our country’s government has taken quite the bold stance on the new Bill while also taking into account our country’s cultural variety, customs, and schools of thought. We can also expect for a more women’s rights based and bodily autonomous approach while hoping India’s maternity health facilities match the provisions on paper . In order to fight stigma, societal change is required and this cannot be accomplished by restricting the options of those who are most affected by it.
This paper is authored by Sanika Deshmukh, Gujarat National Law University.
[1] Shalini Yog Shah, A flawed right to safe abortion in India: What more can we do?, Heinrich Boll Stiftung( 8 March ,2021), https://in.boell.org/en/2021/03/04/flawed-right-safe-abortion-india-what-more-can-we-do.
[2] Unintended Pregnancy and Abortion Worldwide, GUTTMACHER INSTITUTE ORG( July,2020), https://www.guttmacher.org/fact-sheet/induced-abortion-worldwide.
[3] Reasons for abortion ,BBC (May, 2014), https://www.bbc.co.uk/ethics/abortion/legal/when_1.shtml) .
[4] Justice K. S. Puttaswamy (Retd) & Anrs. v. Union of India and Ors., (2017) 10 S.C.C. 1.
[5] Agrawal, Shaifali“56% abortions in India unsafe despite being legal; kill 10 women every day”. Business Standard( November 22, 2017).
[6] Bhavish Gupta and Meenu Gupta, THE SOCIO-CULTURAL ASPECT OF ABORTION IN INDIA: LAW, ETHICS AND PRACTISE (2016), https://ili.ac.in/pdf/p10_bhavish.pdf.
[7] Medical Termination Of Pregnancy Act, 1971, No. 34, Acts of Parliament, 1971( India).
[8] Mythreyee Ramesh, MTP Rules: What Are the Pros & Cons of Changes to Our Abortion Law?, The Quint,( 14 Oct 2021, 9:39 AM), https://www.thequint.com/neon/gender/medical-termination-of-pregnancy-abortion-rights-explainer#read-more.
[9] The Medical Termination of Pregnancy( Amendment) Bill, 2020, PRS Legislative Research, . (https://prsindia.org/billtrack/the-medical-termination-of-pregnancy-amendment-bill-2020).
[10] Dr. Nikhil D. Datar v. Union of India & Ors., SLP (C) 5334 of 2009.
[11] Devika Nair, Shruti Singhi and Sumati Thusoo, Why Amendments To Medical Termination Of Pregnancy Bill Don’t Go Far Enough( April 6, 2021), https://thewire.in/health/medical-termination-of-pregnancy-amendment-bill-women-abortions.
[12] The Author(s). Published by Elsevier Ltd., The incidence of abortion and unintended pregnancy in India, 2015, The Lancet Global Health(1 January, 2018), https://www.thelancet.com/journals/langlo/article/PIIS2214-109X1730453-9/fulltext#seccestitle10.
[13] Suchita Srivastava & Another v. Chandigarh Administration (2009) 11 S.C.C. 409.
[14] PLD & Sama, Status of human rights in the context of SEXUAL HEALTH AND REPRODUCTIVE HEALTH RIGHTS IN INDIA( April, 2018), https://nhrc.nic.in/sites/default/files/sexual_health_reproductive_health_rights_SAMA_PLD_2018_01012019_1.pdf.
[15] Amnesty International, https://www.amnesty.org/en/what-we-do/sexual-and-reproductive-rights/abortion-facts/.
[16] Roe v. Wade , 410 U.S. 113 (1973).
Congratulations….Very well studied n written paper…came to know many aspects of abortion law…