Why Changes To India’s 50-Year-Old Abortion Law Fail Its Women

07 Sep 2020 10 min read  Share

After decades of advocacy, it took the Lok Sabha only 15 days—without adequate consultation with those involved—to clear amendments to India’s abortion laws. Instead of making abortion easier for women who need it, such as rape survivors, the changes only make it more difficult.


New Delhi: In 2019, a 13-year-old rape survivor in Madhya Pradesh found out she was pregnant and in her 24th week. With the help of Nikita Sonawane, a lawyer associated with the Criminal Justice and Police Accountability Project (CPAProject), an advocacy, she approached the High Court in June 2019. The court allowed her to go ahead with the termination of pregnancy—but only six weeks later, by which time she already reached her 30th week.

“The doctors had to induce delivery. She was in labour for 24 hours,” said Sonawane. Her lawyers pleaded for mental-health support but the biggest government hospital in Madhya Pradesh did not have a child psychologist. "Finally, a psychiatrist was arranged, said Sonavane. "It was an immensely harrowing experience for her.”

Nearly a half century after India got its abortion law in 1971, terminating pregnancies can still be tricky in a country where 10 women die every day during unsafe abortions. The amendments come after decades of activism. But it took just 15 days for the Lok Sabha to clear the changes. The Bill now awaits a vote in the Rajya Sabha, whenever it meets next.

The Medical Termination of Pregnancy (Amendment) Bill, 2020, or the MTP Bill, raises the upper limit of legal abortions from 20 to 24 weeks for “special categories of women”, including rape and incest survivors, and even removes the upper gestation limit for abortion in cases of substantial foetal abnormalities.

It seeks to protect the privacy of the woman seeking an abortion with an imposition of upto one year imprisonment and/or a fine for disclosing her personal details, and it places unmarried women and their partners at par with married women.

Based on improvements in medical technology for abortions and observations made in several writ petitions seeking permission for abortions, the Bill claims to address the “grave injury to the mental health of the pregnant woman” and protect her privacy. It hopes to enlarge the ambit and access of women to safe and legal abortion without compromising on safety and quality of care. It ends on a rather promising note: “The proposal will also ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.”

Yet, the modifications elicit wariness.

“Without any consultation with stakeholders and with no time for deliberations, all it took was 15 days," said Sonavane. "What was the rush?”

This hurried assent of the Lok Sabha has occurred without adequate dialogue with health rights advocates, feminist organisations, LGBTQ communities, disability rights advocates, surveillance and privacy experts, legal teams and interested researchers.

The realisation of sexual and reproductive health rights of women, said experts. cannot take place without acknowledging the various forms of patriarchal control that affect women, including lack of or insufficient, contraceptive usage and child-care support.

“The law continues to shackle a woman’s decision to abort by requiring endorsement by one or two medical practitioners for an abortion within 20 weeks or 24 weeks, respectively,” wrote senior advocate Vrinda Grover in the Hindustan Times. “Even within the 24-week period, a woman can only seek abortion for the reasons set out in the law and not on request.”

The Bill is not fundamentally rooted in a rights-based framework. “Barring improvements like extension of the gestation period and the usage of the term ‘partner’ instead of ‘husband’, the law has become all the more regulatory,” said Anubha Rastogi, a lawyer associated with the Pratigya Campaign for gender equality and safe abortion.

A Troubled History

Abortion was a punishable offence well into the 1960s under the Indian Penal Code (IPC), 1860, and the Code of Criminal Procedure (CrPC) 1898.

By decriminalising abortion, the MTP Act, 1971, was seen as a step forward in the understanding of sexual and reproductive rights.

The first amendment to the MTP Act (Amendment) in 2002 improved access for women especially in the private health sector.

Almost a decade later in 2011, a second draft amendment was expected from the ministry of health and family welfare (MoHFW), which had set up a task force after conversations with diverse stakeholders. “But when Census 2011 was released, this went into cold storage because of apprehensions about the child sex ratio,” said Rastogi.

In 2014, a third attempt to introduce amendments by increasing the upper limit for legal abortion to 24 weeks also failed when it was reported that the Prime Minister’s Office wanted “more stringent” measures against sex-selective abortions banned under the Pre-Conception and Pre Natal Diagnostic Techniques (PCPNDT) Act, 1994.

“Since then, there has been complete silence about any progress until this January when we got to know about this amendment bill,” said Rastogi.

In 2008, there was a nationwide debate on abortion after a school teacher filed a petition in the Bombay High Court to have her pregnancy terminated in the 24th week after she learned about the foetus’s congenital heart blockage.

The Bombay High Court refused permission, noting that abortion was not allowed beyond 20 weeks and the ‘expert medical opinion’ sought by the court did not suggest that the foetus should be aborted.

Medical bodies like the Federation of Obstetric and Gynaecological Societies of India (FOGSI) disagreed and demanded an amendment to the MTP Act. Anbumani Ramadoss, the then health minister, said that there was no need for an amendment based on just one case.

Perhaps he had not foreseen the rash of MTP legal cases in the years to follow.

Nikhil Datar, the school teacher’s obstetrician, became the first doctor to approach the courts. In 2009, with the help of the Human Rights Law Network (HRLN), an advocacy group, he filed a special leave petition before the Supreme Court demanding an amendment of the MTP Act.

“I have been a petitioner myself in four MTP cases, and I have played a keen role in several others,” said Datar. “The 20-week deadline had to be done away with,”

“While there has been a barrage of MTP legal cases, judgments remain restricted to individual cases,” said Rastogi, a coauthor of the report Assessing the Judiciary’s Role in Access to Safe Abortion released by Pratigya Campaign.

Rastogi analysed 194 writ petitions in the Supreme Court and high courts between June 2016 and April 2019 from women who have sought abortions. Of these cases, 33 were filed by rape survivors. Minor rape survivors were denied an abortion by the courts in 17% of cases. Another 40 petitions sought permission to terminate pregnancies under the legal limit of 20 weeks simply because doctors had refused to perform them.

Healthcare System Incapacities

One in three of 48.1 million pregnancies in India every year end in an abortion, according to a study published in The Lancet in January 2018.

The study found that 81% of the roughly 15 million abortions in 2015 were medication abortions, 14% were surgical abortions and as many as 5% were “done through other methods that were probably unsafe”. The study recommended the need to “expand access to abortion services through better equipping existing facilities, ensuring adequate and continuous supplies of medication abortion drugs, and by increasing the number of trained providers”.

The MTP Amendment Bill calls for varying levels of medical scrutiny at each stage of pregnancy and seems to ignore the lack of access to affordable and widely available healthcare.

“A large number of women have to opt for unsafe abortions, contributing to about 12% of maternal mortality,” said Mohan Rao, retired professor, Centre of Social Medicine and Community Health, Jawaharlal Nehra University. “The Bill ought to have addressed the fundamental concerns about access to medical abortion, and who is capable of mentoring women who decide to undergo this procedure.”

A community health worker counsels a pregnant woman/CREATIVE COMMONS

India has 20.6 doctors, nurses, and midwives per 10,000 population, less than half the 2016 World Health Organisation (WHO) recommendation of 44.5, found a 2019 study by BMJOpen, an open access medical journal. The density of healthcare workers is even more abysmal in certain states, with only 36% of healthcare workers serve in rural areas.

The costs of healthcare already fall disproportionately on people, with government expenditure on healthcare being just 1.6% in the current budget. Healthcare costs contribute to abject poverty and indebtedness. And, yet, the Bill makes no promise of affordable abortion service.

“There is a certain kind of deskilling happening at the MBBS level owing to privatisation of medical education,” explained Mohan Rao. “As a result, we have MBBS graduates who cannot perform an MTP.” Strengthening the public health system is crucial to safe abortions, he said.

The Bill does acknowledge links between abortion services and mental health, but does not provide for any form of mental-health support. This is especially crucial for survivors of sexual violence, said Sonawane. “How else does the law imagine their trauma to be effectively addressed?”

The Bill allows for exceptions in cases of substantial foetal abnormalities. “Some foetal anomalies are not detected and confirmed even by the 20th week,” said Datar. “If a pregnant woman gets an [ultrasound] appointment anytime after the 20th week and realises the presence of these ‘substantial foetal abnormalities’, how absurd is it to tell her that there exists no treatment for this and yet the law prohibits her from accessing abortion services?” he asked.

Disability rights activists are uncomfortable about the use of the term ‘abnormalities’ and want it replaced by ‘anomalies’. Sonawane pointed out that the 2002 amendment had made some progress by replacing the term ‘lunatic’ with ‘mentally ill person.’ These seemingly semantic concerns are in fact a political statement on disability rights and justice, which the Bill should be taking into consideration.

Datar debunked the notion that termination of pregnancy at later stages is dangerous and ill-advised. On the day we spoke, he had induced labour and delivered a baby of a woman only in her 28th week of pregnancy. The woman suffered from serious preeclampsia, a pregnancy complication characterized by high blood-pressure, risking both the woman and the foetus in this case, and it was his opinion that the foetus had better chances of survival outside her body.

In another case, he told me, a patient had to have a pregnancy terminated by induced labour at 28 weeks when anencephaly, a condition where the foetus shows signs of an underdeveloped brain and an incomplete skull, was diagnosed.

“The medical process in both cases was the same. Only the intention varies,” he explained. “If you want to terminate when it’s at the lowest risk for the woman, then you should stop at around seven weeks. But, we already have a law that allows us to act differently for a reason,” he added.

The Bill mandates that when the woman seeks an abortion after 24 weeks, a medical board consisting of at least a gynaecologist, a paediatrician, a radiologist or sonologist, is to be constituted. The state government may lay the ground rules for the addition of any other member to this medical board.

Activists are concerned about the timely composition of such a board given the paucity of healthcare workers. Moreover, they worry that as a third party, these boards could function as a moral authority ruling over what should be a woman’s decision, particularly in cases involving the rape of minors.

In the Pratigya Campaign report, Rastogi observed, the reliance on court-appointed medical boards is a major factor for denying abortion to even rape survivors. “People are still going to court at about 12 weeks or 14 weeks, all because the doctors are sending them,” she said.

This added, and unnecessary, adjudication only delays a process where time is crucial.

Underage Girls, Sex Selection And Other Thorny Issues

Raising the legal age of consent for girls from 16 to 18 has had serious implications to the Protection of Children from Sexual Offences (POCSO) Act, 2012, which regards all sexual activity between minors, even when consensual, to be an offence. This “creates a spectre of criminalisation that further impedes justice,” said Nikita Sonawane.

Teenage pregnancies, intercaste love affairs, and runaway marriages all fall under scrutiny of POCSO, if the girl is younger than 18-years-old. Calling it a “narrow view of adolescent sexuality and consent”, Sonawane said it was a serious deterrent for minors seeking abortion services. With that fear of incarceration, the woman is left with two alternatives: Opt for unsafe illegal abortion or turn her partner in as a sexual offender. “How is that a fair trade-off at all?” she asked.

Under MoHFW guidelines, anyone above the age of 12 can consent for medico-legal procedures. Abortion is the exception, and girls under 18 must obtain consent from parents and guardians first.

In response to skewed child sex ratio, the PCPNDT Act was brought in to regulate the misuse of ultrasound technology and to prohibit sex selection.

Abortion has been legally available since 1971 but penalties under the PCPNDT Act on doctors have ended up having a chilling effect on women seeking abortions. Medical service providers are scared of prosecution. “PCPNDT is about the identification of and communication about sex of the foetus. It stops there, and does not say anything about what one does with that information thereafter,” said Rastogi. But what about those women seeking abortions for other reasons? “Abortion is not the rogue here,” Rastogi said. “The female foetus cannot be pitted against a live woman by putting these two laws at loggerheads with each other. The scope of both laws are clearly defined,” she said.

Whose Rights?

In 2009, a mentally challenged woman who had been placed in a government-run welfare institution in Chandigarh became pregnant as a result of rape. In the 19th week of her pregnancy, the Chandigarh administration obtained permission from the High Court to have her pregnancy terminated.

The woman, however, wanted to have the child and appealed in the Supreme Court in a case known as Suchita Srivastava v Chandigarh Administration. The two questions before the apex court were: Did the High Court obtain consent from the woman, and did it act in her best interests?

Upholding her right to have her child, a Supreme Court bench noted that the case presented an opportunity to “confront some social stereotypes and prejudices”. The judgment took cognisance of a woman’s right to make reproductive choices under Article 21 of the Constitution.

Defining the right further, the Court said: “The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.”

The progressive underpinnings of the judgment notwithstanding, the case reminds us of the critical question of rights, as Rastogi pointed out, of imagining abortion as a right. But, who gets to avail of their rights and at what cost?

A dialogue on medical termination of pregnancy is incomplete without acknowledging women’s access to avoid unwanted pregnancies in the first place.

It was observed in NFHS -4 that 47% of married women aged between 15-49 do not use any modern contraceptive method.

The numbers are likely to get worse owing to the lockdown.

In the first three months of the lockdown, 1.85 million Indian women could not terminate an unwanted pregnancy, found a study conducted by the Ipas Development Foundation in May 2020. The study attributed 80% of this to lack of availability of medical abortion drugs. Foundation for Reproductive Health Services India (FRHS) also estimates the lockdown disruption could lead to 2.3 million unintended pregnancies and 834,042 unsafe abortions.

“What we need is sexuality education and access to contraceptive measures. Right now, even married couples are using emergency contraception routinely. There is a dire need for access to good contraception, user controlled contraception, and spacing methods,” noted Mohan Rao.

(Sweta Dash is an independent researcher and journalist, particularly interested in sexual and reproductive health rights.)