India’s amended abortion law still gives doctors, not women, the final say in terminating pregnancy

The terms for abortion have been liberalised in India after an amended law received the President’s assent on March 25. But gender and reproductive rights activists are disappointed that the law still does not recognise abortion as a woman’s choice that can be sought on-demand, as is the practice in 73 countries.

These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

• The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
• All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks. The approval of two doctors is now needed only for the 20-24 timeline reserved for abortion seekers of special categories.
• Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
• There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

Yet, the law does not grant women complete control over reproductive choices, abortion advocates say.

“To me, the provisions [of MTP Amendment Act 2021] are progressive in a paternalistic, victimhood kind of way,” said Suchitra Dalvie, gynaecologist and coordinator for Asia Safe Abortion Partnership, a pan-Asia network for safe abortion advocacy.

Critics of the law also pointed out that it does not take into account the crisis of healthcare caused by the ongoing pandemic. Given this and the chronic shortage of doctors in India, demanding that women seek out the opinion of two practitioners and a medical board for certain kinds of abortions is unfair, they said. Disability advocates have also raised objections that we detail later.

Abortion remains stigmatised in India, even within the medical fraternity, as IndiaSpend reported in September 2020. There have been several reports of women being denied abortions on “moral” grounds by doctors or being asked to bring partners or parents along for the procedure. This is especially the case when the abortion is sought on grounds not related to a woman’s physical health, as specified in the MTP Act, but because it can cause “injury to her mental health” (also covered by the Act), these reports showed.

The law also recognises mental health-related reasons for seeking an abortion that doctors may not support if it violates their personal belief system – doctors could withhold approval for abortion due to changed psycho-social circumstances that make a pregnancy unwanted, unintended pregnancy, and unwillingness in a young, single woman to have a child.

Safe access is critical

India’s amended abortion law was passed 50 years after the first law on the subject was brought in, the MTP Act, 1971. The MTP Bill 2020 was passed by the Lok Sabha in March 2020, just before the coronavirus pandemic-led lockdown was announced. A year later, on March 16, it was passed by the upper house of Parliament and got the President’s assent as the Medical Termination of Pregnancy (Amendment) Act, 2021.

The abortion law had been briefly amended in 2002 to allow for the use of the then-new medical abortion pills, mifepristone and misoprostol.

“There is need for increasing access of women to legal and safe abortion services in order to reduce maternal mortality and morbidity caused by unsafe abortions,” said health minister Harsh Vardhan during the Rajya Sabha debate on March 16.

Unsafe abortions are among the most common causes of maternal deaths in India. In 2015, 1.56 crore abortions were accessed annually in India, according to a study in The Lancet. Of these, 78% or 1.23 crore were conducted outside health facilities.

More than half or 56% abortions in India are unsafe and 10 Indian women die daily due to unsafe abortion, as per a 2015 report by Ministry of Health and Family Welfare that cites data from research done between 2001 and 2004.

Abortion is said to be safe if it is done with a method recommended by the World Health Organization that is appropriate to the duration of the pregnancy and the training received by the person providing or supporting the abortion. The WHO classifies abortions as safe, less safe, and least safe. The latter two being unsafe.

Only 20% of abortions take place in public sector facilities and 52% in private, as per the National Family Health Survey, 2015-’16. Further, NFHS 2015-16 showed that “only 53% of abortions were performed by registered medical doctors”.

Amee Yajnik, Member of Parliament in the Rajya Sabha said, “The rest were done by midwives, auxiliary nurses or dais [traditional birth attendants] as we call them in the villages.” Also, specialists required for the medical boards that are supposed to sanction post-24 week abortions – gynaecologist, paediatrician, radiologist or sonologist – are in short supply, she added.

Rural India, where 66% of the country’s population resides, reports a 70% shortfall in the number of obstetrician-gynaecologists, according to the 2019-’20 Rural Health Statistics Report of the Ministry of Health and Family Welfare.

To deal with the problem of access to healthcare in the pandemic, abortion advocates had sought enhanced self-management of medical abortion through medical abortion pills, perhaps with remote supervision. Even before the pandemic, they had demanded better provision of abortion self-management in the first trimester and that the opinion of only one MTP provider be required instead of two for terminations between 20 and 24 weeks of pregnancy. Other demands included training of more mid-level healthcare staff to provide abortions.

Not progressive enough

“With the passage of time and advancement of medical technology for safe abortion, there is scope for increasing the upper gestational limit for terminating pregnancies…,” Union health minister Harsh Vardhan had said in Rajya Sabha.

But abortion advocates are disappointed that the amended law still does not give women the right to get an abortion on demand, as we said. “If they are willing to look at medical technology advancement, they could have also considered [the fact] that women’s agency has changed so much,” said Jasmine George, lawyer and founder of Hidden Pockets Collective, a young people’s charity that works on the rights-based framework for abortion and adolescent sexuality.

As we said, 73 countries make abortion available at the pregnant person’s request, including India’s neighbour Nepal and other Asian countries such as Uzbekistan, Tajikistan, China, Vietnam, Thailand and Cambodia. Of these, 25 countries also require parental or spousal authorisation or notification.

“A pregnant woman [in India] cannot go to a certified provider and say that I want you to terminate this pregnancy because that is what I want,” said Anubha Rastogi, a Mumbai lawyer who authored a report on the judiciary’s role in helping women access safe abortions for Pratigya Campaign, a network working for gender equality and safe abortion access. “If the doctor says no, then that is that.”

Rastogi points out that Section 312 of the Indian Penal Code that labels “causing miscarriage” as an offence has not been scrapped yet. The MTP Act is seen as an exception to IPC; that is, abortion is available only under the conditions specified in it.

The amended law comes against the backdrop of scores of women approaching the Supreme Court and high courts across the country to secure permission for abortion post 20 weeks upon the discovery of a foetal anomaly, late detection of a pregnancy caused by sexual assault, or changed psycho-social circumstances.

Maternal mortality

Within the women’s rights framework, India’s MTP law falls in the category of laws that allow abortion on “broad social or economic grounds”, next to the best option of “on request”, according to the Centre for Reproductive Rights, a global human rights organisation.

Restrictive abortion laws are associated with higher levels of maternal mortality: The average maternal mortality ratio is three times higher in countries with more restrictive abortion laws (223 maternal deaths per 1,00,000 live births) compared to countries with less restrictive laws (77 maternal deaths per 1,00,000 live births), according to the WHO.

Global examples show that easier access to abortion encourages women to seek pregnancy termination in the earlier weeks of gestation, resulting in better-managed abortions. Sweden, for example, has one of the most liberal abortion laws – it makes MTP available on request up to 18 weeks.

Most abortions there are conducted around the 12-week-gestation mark usually through the two-pill combination method that is preferred in first-trimester abortions and whose effect mimics a natural miscarriage.

In 1988, Canada became the first country to decriminalise abortion and it has reported a fall in the gestational age at abortion without a rise in the abortion rate. By making abortion a state-funded procedure and allowing telemedicine facility for medical termination through pills, it has managed greater abortion equity across socio-economic and geographical backgrounds.

Appeals during lockdown

Even during pandemic-induced lockdowns, in four months to August 2020, 112 cases of abortion appeals were heard across 14 high courts in India, according to the report authored by Rastogi for Pratigya. To place this in perspective, over 15 months to August 2020 (including the four months of the lockdown when 112 cases were heard), she found 243 such cases before the high courts – substantially more in a shorter period than the 175 cases in the 35-month span from June 2016 to April 2019. This indicated a higher proportion of abortion appeals in courts during the lockdown.

“Even within the four months of the lockdown when only urgent matters were getting listed, this was happening,” said Rastogi. The Union government had listed abortion as an essential service three weeks into the lockdown in April 2020 after several reports emerged of women struggling to access reproductive health services.

Due to restricted access to contraceptives during the lockdown, at least 1.18 million abortions from unintended pregnancies were predicted by the Foundation for Reproductive Health Services, India. In the first three months of the pandemic, 18.5 lakh women in India could not access abortion services, according to the non-profit IPAS Development Foundation. Several hospitals reported a higher number of abortions compared to previous years, even as out-patient facilities remained suspended for several months to provide Covid-only services.

The increase in abortion seekers accompanied an increase in women sustaining domestic violence during lockdowns.

George, whose Hidden Pockets Collective supported women struggling to access reproductive healthcare during pandemic lockdowns, spoke of the problems faced by a 21-year-old, unmarried law college student in Kochi who was nearly five weeks pregnant in March 2020.

“She went to four private hospitals because government hospitals anyway do not provide easy abortion access,” said George. “But here too they refused to give her medical abortion pills until her parents came in.” Even the older MTP Act – that was in place when the pandemic struck – had no requirement for an adult woman to bring anyone along for consent.

The hospitals also sought her identity documents for consultation, though it is not required unless one is seeking an ultrasound, said George.

“Finally, the fifth hospital provided her medical abortion for Rs 21,000,” said George (a two-pill medical abortion kit is not supposed to cost over Rs 390). The woman was staying with her parents and was experiencing adverse symptoms of pregnancy.

She had to not only hide these symptoms from her parents but also find a way to venture out with her friends or partner – who had organised the funds – in search of a hospital. “It was surprising even during lockdown they (healthcare providers) were playing with a woman’s health,” George said.

The pandemic magnified the existing barriers that resource-poor women have been facing, said gynaecologist Dalvie: “There is no stock of drugs, the doctor is not available, no bus and so on.”

Demands for further changes to the abortion law were ridiculed by the Union health minister – “being in some particular ideology, thoda thoda symbolic virodh karna bhi zaruri hai (opposition MPs feel the need to oppose the Bill symbolically)”. The proposed amendments were not passed.

Disability bias, ethics

The removal of the gestation limit in the case of “substantial foetal abnormality” and counting “differently-abled women” as vulnerable – both these intents of the amended law encroach on the rights of persons with disability, said activists.

“A lot of times, even doctors say that she (a woman with a disability) is not capable of giving birth or she’s not capable of taking care of the child. Because they see women with disabilities as women who need care as opposed to those who can give care,” said Divya Goyal, who is co-authoring a chapter in a book on the hierarchies of disability human rights for Routledge, along with Maitreya Shah, a lawyer, disability rights advocate and director of EnableMe Access. Both are persons with disabilities themselves.

The lack of counselling for women carrying disabled foetuses is another concern, said Goyal, the author of the upcoming Routledge research. “We do not invest a lot in creating social services for families where there are disabled children,” said her co-author Shah. “Instead, we are focusing on preventing the birth of disabled children. If you see the MTP Amendment, whatever debates happened in Parliament, none of them was on disability; no one mentioned it at all.”

The law also makes no mention of providing financial and logistical aid to pregnant women who want to access medical boards. Making a woman who is pregnant with a disabled foetus run to medical boards where doctors and officials will decide for her “is extremely demeaning to her, is an invasion of her privacy, invasion of her choice and also, creating more bureaucratic hurdles than needed at a time when she needs to take that decision”, MP Priyanka Chaturvedi said in parliament, joining eight of her colleagues in calling for the bill to be sent to a select committee for updation. This proposal could not get through and the bill passed the Rajya Sabha without any major amendments.

The usage of the term foetal “abnormality” is also derogatory, implying a condition of disability is abnormal, said Rastogi. “Instead, you could use the term foetal anomaly,” she said.

There is a unique issue of ethics involved in abortions past the 24-week limit when termination of pregnancy is carried out by inducing labour: The foetus could be born alive, which raises a question: Should it be resuscitated? And if yes, who will take responsibility for the child?

In countries where abortion can be accessed beyond 20 weeks, it involves introducing an injectable into the foetal tissue to prevent live births. “That injection is not a part of how gynaecologists are trained in India because abortions never exceeded 20 weeks,” Dalvie said. “Doctors will bring their own biases, personal moralities, and values and they may refuse it even if it is 20-24 weeks.”

At least two MPs in Rajya Sabha – Amee Yajnik and Fauzia Khan – also asked to consider transgender persons’ abortion rights. “The terminology that it (MTP Act 2021) uses is non-inclusive: only using the term “woman” especially when we now have the Transgender Persons (Protection of Rights) Act, 2019. You are [the government is] not in harmony with the other laws you yourself have passed,” said Rastogi.

Privacy clashes

The MTP Act 2021 also contradicts the Supreme Court’s 2017 privacy judgement (Justice KS Puttaswamy versus Union of India and others), which ruled that a woman’s right to make reproductive choices is a dimension of personal liberty as understood under Article 21 of the Constitution. Any law that restricts a person’s privacy must be “just, reasonable, and fair”, a test that India’s abortion law, if challenged, could fail, activists say.

This is because the law does not allow a woman to decide for her own pregnancy but gives her a narrow set of conditions where doctors and medical boards decide for her. A 2016 Bombay High Court judgement in a suo motu public interest litigation on the condition of a prison inmate emphasised the right of a woman to control her body and fertility – “the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant”.

“There is a lot of grey area or overlap between MTP and other laws,” said advocate Rastogi. She cited the Protection of Children from Sexual Offences Act and the Drugs and Cosmetics Act, 1940. POCSO mandates that if a minor conceives, even through consensual sex (even though POCSO does not recognise consent of a person below 18 years), and wants to abort, the matter has to be reported to the police. The amended MTP law, though, largely guarantees privacy to the parties involved in abortion.

Similarly, medical abortion pills are classified as Schedule H drugs for which a pharmacist must maintain a record of sales under the Drugs and Cosmetics Act. This violates the confidentiality promised by MTP Act 2021, abortion advocates say.

This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.