The word “abortion” does not appear even once in the Medical Termination of Pregnancy Act, 1971 (The MTP Act), a piece of legislation whose intended purpose was to prevent the wastage of women’s health and lives on medical and compassionate grounds. While this Act does provide a viable option for women to obtain safe abortions, it is far from the pillar of strength that the 21st-century women’s rights movement needs it to be.
Before 1971, abortion was classified as a crime under Section 312 of the Indian Penal Code, 1860, a provision that stands till date. The 20th century saw a string of nations legalizing abortion albeit in differing capacities and most under severe restrictions. The 1970s, in particular, were an important period, where major countries like India, USA, France and West Germany among others held abortion to be legal.
In India, the talk around abortion began in the 1960s; a remarkable fact given the conservative culture that has remained the norm even today. Taking cognizance of the high mortality associated with illegal and unsafe abortions, the government set up the Shantilal Shah Committee. In 1966, the Committee turned in its report, recommending the legalization of abortion to prevent the loss of women’s lives. The initial response by various states was not welcoming. Most construed the report to be a clandestine strategy on part of the government to reduce the population growth in the country. However, the Shah Committee clarified that the purpose was to give women control in their reproductive lives and nothing else.
Consequently, the Medical Termination of Pregnancy Bill was passed by the Parliament in August 1971. The Act allowed termination of pregnancies up to 20 weeks; this, however, was contingent on the approval of a certified medical practitioner. The law mandated that one medical practitioner in the case of 0-12 weeks and two practitioners in the case of 12-20 weeks would have to opine that such a pregnancy would cause grave injury, either mental or physical, to the mother or that if such a pregnancy was allowed to occur, the child born would have severe abnormalities. Such contingencies indicated that the law did not perceive abortion to be a right, but only a medical necessity.
Section 3(2) of the MTP Act lists out the circumstances when a termination of pregnancy will be considered legal. This conditional clause takes away the freedom of woman to have autonomy over their reproductive system and flies in the face of cases like Suchita Srivastava vs Chandigarh Administration and Devika Biswas vs Union of India, where the Supreme Court of India has held a woman’s reproductive autonomy to come under her Fundamental Rights to Life and Privacy and that the decision to have or not have a child was hers alone. Ergo, by compelling a woman to obtain the satisfaction of a practitioner, the law denies the woman the right to choose when it comes to her own body.
There have been some amendments to the MTP Act over the years. The first amendment came in 2002 and the most notable change was the decentralization of regulation of the facilities where termination of pregnancy could take place. Earlier exercised by States, these powers were transferred to districts to streamline the process, but the amendment failed to bring about a major change. Later attempts to amend the Act did not see the light of day. Most recently, the Ministry of Health and Family Welfare introduced the Medical Termination of Pregnancy (Amendment) Bill, 2020. The Bill proposes to raise the gestational limit from 20 weeks to 24 weeks. It stipulates that the name and details of the women will not be revealed to anyone except a person authorized by law. With regards to the conditional clause, the number of practitioners is to be reduced to one – until 20 weeks – and two practitioners from 20-24 weeks. The bill also says that the upper gestational limit will not apply to cases which involve foetuses with severe abnormalities as determined by a Medical Board, whose composition and regulations will be determined later. This bill has been passed by the Lok Sabha in March 2020 and will be discussed in the Rajya Sabha.
While the nation seems to be headed in the right direction, there are many fundamental flaws in the Act. A study published by Lancelet Global Health revealed that out of the 15.6 million abortions that took place in 2015, nearly 78% of them – or 12.3 million abortions – took place outside health facilities. Despite being one of the first nations to legalize abortions almost 50 years ago, nearly 10 women are found dead every year as a result of unsafe abortions, making it the third leading cause of maternal deaths in the country.
The MTP (Amendment) Bill, 2020, does not make substantial changes to the present legislation. It still classifies abortion as a medical alternative to be available only in case of listed circumstances. It reiterates the government’s stance in Dr Nikhil Datar vs Union of India in September 2019, where a PIL seeking decriminalization of abortion was filed before the Supreme Court. It was submitted that “a pregnant woman’s right to abort her pregnancy is not an absolute right, and the right must be balanced against the compelling state interest of protecting the mother’s health and the life of the foetus/unborn child.” The MTP Act was worded as an exception to the penal provisions that criminalize abortion. Section 3 of the Act begins with “Notwithstanding anything contained in the Indian Penal Code…” which plainly indicates that there is an underlying bias towards the protection of medical practitioners rather than giving women authority over their own reproductive lives.
Despite several measures undertaken by the Central government, the abortion landscape in India is bleak and lacking in quality and the will to enforce it. The MTP Rules, 1975 laid out the criteria for private hospitals to meet in order to be approved as an abortion facility. On the other hand, government-run clinics do not have to satisfy any criteria and this neglect is reflected in the way the clinics are run and maintained. These rules have since been repealed and replaced by the MTP Rules, 2003. Another aspect which greatly hampers access to abortion services is the attitude of the states. Under the Seventh Schedule of the Indian Constitution, healthcare is a State subject, and thus greatly empowers them to regulate services. Maharashtra requires a blood bank to be within 5km of any abortion facility, a condition that is both unnecessary and impractical. Some states require that the floor area and architectural plans be submitted while Delhi mandates that the facility should certify that it has parking space. These restrictions reveal that the mindset is to control and hamper rather than facilitate the availability of these services.
The present MTP Act, 1971, has a distinct prejudice towards certified medical practitioners. As it stands, mid-level health providers and practitioners of alternative systems of medicine are disallowed from providing an abortion. A draft of the MTP (Amendment) Bill, 2014 mentioned extending the status of provider to include nurses and practitioners of AYUSH, but was omitted in the final submission. In expanding this base of providers, India would greatly widen the availability of abortion services to rural areas which often lack certified practitioners who are trained in obstetrics and gynaecology. The latest amendment as passed in the Lok Sabha betrays the myopic liberalism of the government. The new bill fails to give women the autonomy they deserve. In embracing a needs-based system as opposed to a rights-based system, the State compels the woman to provide a reason to exert control over her own body. The repeated delays in obtaining opinions, the battery of invasive tests and the lack of a dedicated redressal system results in hundreds of women not being able to obtain abortions even if they meet the requirements imposed by the government. At last when the gestational limit is breached and a court of law is the only recourse left, the slow wheels of justice bog down hearings and decisions until it is physically impossible to perform a safe abortion.
India has always sought to strike a balance between individual liberty and state intervention. In this particular instance, the needle leans heavily in favour of the state. In an attempt to pacify conservative society and absolve itself from accusations and culpability, successive governments have let the Act stand as it is or have attempted to introduce frail amendments that do not change the essence of the act. India needs to take cognizance of the decisions laid down by the Supreme Court and make abortions a matter of choice, and not circumstance. In giving women basic autonomy over their own body, India will have taken bold and decisive steps to put women on the same footing as men, at least as far as the law is concerned.
About the authors
Devanshee Shah and Kartik Hede are 2nd year students pursuing BLS LL.B from Pravin Gandhi College Of Law, Mumbai