Author: Muskaan Aggarwal
IV Year | Jindal Global Law School, Sonepat

Introduction:

According to law, since 1971, abortion is legal in India and women can terminate their pregnancy. The primary abortion law in India, the Medical Termination of Pregnancy (MTP) Act, 1971, allows abortions of up to 20 weeks in pregnancy. In 2021, there was an increase in this threshold to 24 weeks through the MTP (Amendment) Act, 2021, in special scenarios. Further, there was an inclusion of failure of contraception as a valid reason to seek the termination of pregnancy, irrespective of the marital status of the woman. 

In the case of Justice K.S. Puttaswamy (Retd.) v. the Union of India and Others,[1] women’s reproductive choices were recognised as a constitutional right under Article 21 of the Indian Constitution relating to personal liberty. The court reiterated this from the previous case of Suchita Srivastava v. Chandigarh Administration.[2]

However, are these changes enough, or is there a flip side to these seemingly forward changes to the Act? This article aims to analyse the current abortion laws in India and how they lack a women-centric approach, despite claiming to be for women.

Unsafe Abortions:

According to the State of the World Population 2022 Report by the United Nations Population Fund (UNFPA) titled “Seeing the Unseen: The case for action in the neglected crisis of unintended pregnancy”, 67% of the abortions taking place in India are unsafe.[3] Further, the report highlighted that one in every seven unintended pregnancies worldwide occurs in India.[4]

Every day, eight women die in the South Asian nation due to the problem of unsafe abortions.[5] Unfortunately, abortion-related issues are the third leading cause of total maternal deaths happening in India.[6] The UNFPA Report highlights that while the MTP Amendment was encouraging, India still must do a lot more for the proper prevention of unsafe abortions.[7]

Usually, abortions are safe if they are done using the methods and recommendations of the World Health Organisation (WHO).[8] With more than 50 recommendations for people to refer to, WHO guidelines include primary level care intervention recommendations to provide quality abortion care with more health workers, accessible abortion pills, and accessible information. Further, WHO has now included telemedicine within its ambit, considering the Covid-19 pandemic and how it became more difficult to access abortion facilities and undertake proper family planning during such times.[9]

Lack of Access to Safe Abortions:

Geographical access further becomes a problem considering that about 66% of the population are from rural backgrounds. The 2019-20 Rural Health Statistics Report by the Health Ministry highlights this.[10] This means that auxiliary nurses, birth attendants, or midwives usually do these abortion procedures making the procedure unsafe for the woman.

It had been highlighted under the 2015-16 National Family Health Survey[11] that about 20% of abortions are done within public healthcare facilities, and 52% of abortions are conducted in private hospitals and clinics (mainly concentrated in the urban side). This is further in contravention to the Sustainable Development Goals (SDGs) 3.7 and 5.6, which cover the aim of “universal access to sexual and reproductive health and reproductive rights”.[12]

The Deficiency of Privacy and Prevalence of Patriarchy:

As highlighted by the Supreme Court of India in the case of Anil Kumar Malhotra v. Ajay Pasricha,[13] abortion is the exclusive right of a woman only. Therefore, it is not mandatory for her to gain the approval of her partner/husband or any of the immediate family members, so long as she is a major and of sound mind. The court said, “[a] woman has a sacrosanct right to her bodily integrity and it’s her choice”.[14]

However, despite such judgments, women still find it difficult to access safe abortion. In most cases, she will need her husband’s or immediate family’s consent for the procedure. This violates the woman’s right of choice over her body and affects her confidentiality and privacy.

The trouble increases tenfold for women from marginalised communities, tribal women, unmarried women, HIV-positive women, and others. Their caste, religion, and marital status have a say on whether they have access to the procedure or not.[15]

Also, factors like societal and parental condemnation come into play. Since the institution of marriage is still paramount to all, an unmarried girl getting pregnant often results in public shaming and a lack of prospective alliances.[16]

The Medical Termination of Pregnancy (MTP) Act:

Analysis of the MTP Amendment Act, 2021:

Regarding the 2021 legislation, even though the gestation limit has been increased from 20 to 24 weeks, the Act expects the satisfaction of certain criteria while applying for the termination of pregnancy. The opinion and consent of one Registered Medical Practitioner (RMP) are required if the pregnancy is to be terminated till 20 weeks of gestation. The requirement is increased to the opinion of two RMPs for the gestation period till 24 weeks.

Eventually, if termination is requested post-24 weeks, then the State-level medical board’s opinion is considered. Further, the increase in the gestational period is only for rape survivors, victims of incest and other vulnerable women (including disabled women, mentally ill women, or in emergencies) and not for all women in general.[17]

This means that a woman’s privacy is sacrificed during the entire process of determining whether she is allowed to undergo an abortion. It is not the woman who solely decides on the termination of her pregnancy. The amendments have not been made under the lens of gender justice but are used to preserve the 1971 law doctor-centric approach further.

Lacunae in the MTP Act:

There aren’t any parameters or indicators to determine the medical board’s recommendation to go forward with the abortion. This results in the medical board’s decision often being arbitrary.[18] For example, in some cases, the medical board refused to recommend the termination of pregnancy to a rape survivor.[19] While in other cases, rape survivors were allowed to terminate their 24-week pregnancies.[20]

Analysis of the MTP Act with the Protection of Children from Sexual Offenses Act (POCSO):

The MTP Law also clashes with the POCSO Act. According to the POCSO Act, any minor (under 18) wishing to undergo an abortion has to report to the police.[21] For not reporting to the police, the Act imposes a criminal punishment with imprisonment of 6 months.[22] This also results in a preference for unsafe abortions as they are a more private way of seeking abortions.

The Need for A Rights-Based Approach to Abortion Laws:

A rights-based approach means a woman can terminate her pregnancy whenever she demands it. The laws and policies need to be framed such that the entire issue of abortion is addressed from a human rights perspective. However, as has already been established, the MTP Act as a law is keen to criminalise abortion if it is sought without a practitioner’s consent, even when the woman is within the prescribed gestation limits.

Further, the legislation aims at controlling woman’s reproductive choices, even though it seems liberal on the face of it. This means that the legislators have added motherhood as another norm to a woman’s life without considering her equality or reproductive rights.[23]

Conclusion:

India still has a long way to go for its abortion laws, especially considering how arbitrary the current legislation is. It is about time that women can make their own reproductive choices. The role of medical practitioners needs to be of an advisory capacity, rather than continuing and following their opinion on the requirement of abortion.

Countries such as Russia, Canada, Norway, Sweden and other European countries have some of the most liberal abortion laws and no restrictions on abortion.[24] These countries’ provisions can act as examples for India.

It is important to recognise that the procedure for the termination of pregnancy includes unnecessary hindrances. It should be the woman’s discretion only on whether she wants to continue with the pregnancy or not. While the MTP Act seems to improve the situation, a complex understanding of the socio-legal issues and the practicality of unsafe abortions in India shows the need for a robust system for abortion rights in India to arise.

[1] Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1.

[2] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.

[3] State of World Population 2022, Seeing the Unseen: The case for action in the neglected crisis of unintended pregnancies, UNFPA (2022), https://www.unfpa.org/sites/default/files/pub-pdf/EN_SWP22%20report_0.pdf.

[4] Id.

[5] Supra 3.

[6] Id.

[7] State of World Population 2022, Seeing the Unseen: The case for action in the neglected crisis of unintended pregnancies, India Key Insights, UNFPA (2022), https://india.unfpa.org/sites/default/files/pub-pdf/1_key_insights_india_final_web.pdf.

[8] Abortion care guideline, World Health Organisation (Mar. 8, 2022), https://www.who.int/publications/i/item/9789240039483.

[9] WHO issues new guidelines on abortion to help deliver lifesaving care, United Nations (Mar. 9, 2022), https://news.un.org/en/story/2022/03/1113612.

[10] Rural Health Statistics 2019-20, Ministry of Health And Family Welfare, Government of India, https://hmis.nhp.gov.in/downloadfile?filepath=publications/Rural-Health-Statistics/RHS%202019-20.pdf.

[11] National Family Health Survey (NFHS-4) 2015-16, International Institute for Population Sciences (IIPS) and ICF (2017), https://dhsprogram.com/pubs/pdf/FR339/FR339.pdf.

[12] Sustainable Development Goals: 17 Goals to transform the world, Food and Agriculture Organization of The United States, https://www.fao.org/3/CA3121EN/ca3121en.pdf.

[13] Anil Kumar Malhotra v. Ajay Pasricha, CR 6337/2011 (Supreme Court – 27.10.2017).

[14] Id.

[15] Tanika Godbole, India: Why are Women seeking unsafe abortions?, Deutsche Welle (Apr. 13, 2022), https://www.dw.com/en/india-why-are-women-seeking-unsafe-abortions/a-61464727.

[16] Varun Kumar and Kartikeya Sen, India: Why a Woman’s Right to Decide Must Guide India’s Abortion Laws, Mondaq (May 30, 2022), https://www.mondaq.com/india/trials-appeals-compensation/1197036/why-a-woman39s-right-to-decide-must-guide-india39s-abortion-laws.

[17] The Medical Termination of Pregnancy (Amendment) Act, 2021, G.S.R 730(E), Rule 3B, No. 8, Acts of Parliament, 2021.

[18] Deya Bhattacharya, SC says consent of husband not needed for abortion: Progressive judgment but concerns abound, Firstpost (Oct. 31, 2017), https://www.firstpost.com/india/sc-says-consent-of-husband-not-needed-for-abortion-progressive-judgment-but-concerns-abound-4185657.html.

[19] Kavita v. State of Haryana, 2015 SCC OnLine P&H 629; R and Another v. State of Haryana, WPC 6733/2016 (High Court of Punjab and Haryana – 20.05.2016).

[20] Kumari v. State of Karnataka, WP No. 104672 of 2021 (High Court of Karnataka, Dharwad Bench – 30.11.2021); XXXXXXXXXX v. Union of India & Ors., 2022 LiveLaw (Ker) 438.

[21] Protection of Children from Sexual Offences Act, 2012, § 19, No. 32, Acts of Parliament, 2012.

[22] Protection of Children from Sexual Offences Act, 2012, § 20, No. 32, Acts of Parliament, 2012.

[23] Kanishka Singh, Why India’s Abortion Laws Still Lacks Principles of Reproductive Justice, Behanbox (Aug. 16, 2022), https://behanbox.com/2022/08/16/why-indias-abortion-law-still-lacks-principles-of-reproductive-justice/?utm_source=rss&utm_medium=rss&utm_campaign=why-indias-abortion-law-still-lacks-principles-of-reproductive-justice.

[24] Countries Where Abortion Is Illegal 2022, World Population Review (Sept. 20, 2022, 11:00 PM), https://worldpopulationreview.com/country-rankings/countries-where-abortion-is-illegal.

Editor: Anugra Anna Shaju