Impediments in the right to abortion in India: Reality and Recommendations
R. Divya Meenakshi[1]
Abstract
The legality of abortion is controversial around the world. The debate between a mother’s right to choose as to whether she shall bear the child or terminate the pregnancy and the unborn child’s right to life, is an unsettled one even today, as the right to abortion is considered to be within the purview of the mother’s right to life, guaranteed by Article 21 of the Indian Constitution. Abortion has been a socially and culturally condemned practice. But India happened to be one of the foremost countries to take the step towards legalising abortion through the Medical Termination of Pregnancy Act in 1971. The Act was formulated with the aim of curbing the rapid population growth, as a part of the Family planning measures undertaken by the Government. It also had the motive of reducing the maternal mortality rate as a result of the illegal and unsafe abortion methods that many women were resorting to, ultimately affecting the sex ratio in the country. There were questions about the Act’s aid to sex selective abortions which were already widely prevalent in the country, during a period of time when abortion itself was a criminal offence. However sex determination was also made illegal in the later years, to deal with this issue. As a result of this, though there has been a considerable improvement in the maternal mortality rate and the sex ratio, statistics show that individuals still resort to unlawful practices connected with abortion, which are censured by statutory provisions of the legislations. So this paper analyzes the reasons for this, how it is connected to the abortion laws and measures that could be taken by the government in terms of legislative efforts to deal with this issue. It also examines the proposed amendments to the Medical Termination of Pregnancy Act and some issues that the Act does not address directly.
Key words: pregnancy, abortion, termination, maternal mortality, sex ratio
Introduction:
The number of unsafe abortions that happen around the world in a year has been estimated to be around 22 million.[2] Global estimates have shown that about forty eight percentage of the unwanted pregnancies are bound to be aborted, and a large number of these are not safe.[3] It is admirable to note that India happened to be one of the first countries in the world to legally recognize abortion. The liberal attitude towards abortion that was adopted by the legislature was initially put forth by the Government’s Central Planning Board as a step towards encouragement of family planning. Abortion can be medically described as a miscarriage of pregnancy. It is also the induced termination of pregnancy. Any woman above the age of eighteen requires no other person’s con
sent except her own for the abortion of the foetus.[4]
sent except her own for the abortion of the foetus.[4]
In its current form, the Medical Termination of Pregnancy Act permits abortion within one week after consultation with one doctor. Between 12 to 20 weeks of pregnancy, a woman seeking abortion needs the medical opinion of at least two doctors. Exceptions are made to the 20-week ceiling if continuing the pregnancy poses a threat to either the mother or the child’s life, but only after approval from a court.[5] The reason for this relatively low time frame was to safeguard female infanticide and to prevent sex-selective abortions. This truly was a noble intent however women who learn about abnormalities in the foetus or later develop complications in their pregnancies, and rape victims, particularly underage ones, end up bearing the brunt of unwanted pregnancies. Section 3 of the Medical Termination of Pregnancy Act, 1971 says that pregnancy can be terminated on the following grounds:
- As a health measure when there is a threat to the life of the woman or a risk to her physical or mental health.
- Eugenic grounds: where there is a substantial risk that the child would suffer from deformities and diseases after birth, making life difficult for the parents and the child.
- On humanitarian grounds: such as when pregnancy arises from a sex crime like rape or sterilization failure, etc.[6]
The scenario in the country:
In order to evaluate the issues concerned with abortion in India, contextualising the evolution of the Medical Termination of Pregnancy Act is necessary, which liberalised abortion laws in India. The MTP Act was enacted two years prior to the landmark judgement of Roe v Wade[7] in the US Supreme Court – wherein it was held that legislations that criminalise all abortions, except the ones that are necessary to save a mother’s life, are to be unconstitutional as it violated a pregnant woman’s right to life. But the question regarding the point of balance between the right of the state’s legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life at various stages of pregnancy and the personal right of the woman stands unclear.[8]
In India the number of abortions that had been legally induced had increased at a rapid rate from 24,100 to 90,700 between 1972-73 and 1974-75, on account of decriminalisation of abortion in the country. However the Act did not prove to be an effective measure in curbing illegal abortions in the country, which was undertaken despite the legalisation of abortion, due to various social reasons.[9] This issue happens to be one among the various other pitfalls associated with the Medical Termination of Pregnancy Act.
Lack of success:
The main reason for resorting to illegal means of abortion despite the existence of legal ways is due to the social stigma concerned with abortion, especially in cases of unmarried women who get pregnant and choose not to have a child, and societal remarks even in the case of married women. In India, Shantilal Shah Committee (1964) recommended liberalization of abortion law in 1966 to reduce maternal morbidity and mortality associated with illegal abortion.[10] In 1988, there were 8,23,241 qualified doctors of all systems of medicine in India, 40.3 percent of whom were trained in allopathy. The doctor-population ratio was 1:967. However, according to the 1981 Census, only 41 percent of all doctors (and only 27 per cent of all allopaths) were located in rural areas. Further, less than 15 percent of them worked in the government sector. In 1990, rural areas were provided with health care services by a network of 20,531 Primary Health Centres (PHC). Experience shows that most of these are ill-equipped to render even the most basic indoor medical care. Only some faciliti
es for sterilisation operations and wards for post operative sterilisation cases were available. This shows that there was lack of access to proper legally recognised means for safe abortion, and this has resulted in rural women seeking other unlawful means. Statistics of 1991 showed that in rural areas there had been three illegal abortions for every legal one.[11]
es for sterilisation operations and wards for post operative sterilisation cases were available. This shows that there was lack of access to proper legally recognised means for safe abortion, and this has resulted in rural women seeking other unlawful means. Statistics of 1991 showed that in rural areas there had been three illegal abortions for every legal one.[11]
Due to such unlawful means of abortion, there are health threats to the lives of women and in turn the society as a whole due to unhygienic and unadvisable methods used in poorly maintained environments.[12] This reduces health standards in the society and brings down attributes of healthy lifestyle as a whole. Unsafe abortions account to 8% of maternity deaths in the country, due to the unsanitary conditions in which it is done.[13] It is disheartening to note that an Act that seeked to perform the role of an agent to control the growing population and to emancipate women[14] from the withholding hands of the society does not speak or do much about curbing such deaths, i.e., it is prevalent that the Act has not done much to change the mindset of the society with respect to abortion.
Poorer women of rural areas that seek abortion for various reasons, suffering without proper medical care tend to pursue medical practitioners who function without valid education and seek remedy in such places, risking their lives, hygiene and going against the law. Therefore, despite the existence of a legislation that legally recognized abortion, it guarantees no established, recognized facilities that are easily accessible to women for exercising a women’s right to privacy with respect to abortion.[15]
Sex selective abortion:
In addition to the above issues, there lies the impediment of sex selective abortion and female foeticide, a problem widely prevalent in India which is addressed by the Pre-conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994. However there is a question of whether women’s abortion rights is in slight contradiction to this Act, as resorting to illegal abortion methods due to the lack of accessibility to legal ones might encourage sex selective abortion.[16] Further its is difficult to recognize as to what extent the MTP Act and the PCPNDT Act aid one another positively and in what kind of ways the two legislations may prove detrimental to one another. This will have its effect on the country’s sex ratio and it would exist as proof that the development in the country is still in its minimal stage, on account of the societal blemishes. It further shows that such legislations that take a liberal view still do not perform in the expected manner when it comes to changing the mindset of the society and imbibing open minded views in people’s thoughts.[17]
Another important discussion is concerned with the situation where the unborn child is diagnosed to have mental or physical deformities which could make the child’s and parents’ lives difficult after birth and the mother decides to terminate the pregnancy. Hence the question regarding wanting or not wanting a particular type of child comes up. This puts forth certain concerns in the parenting relationship, making the system of parenting conditional upon the child meeting the criteria of being normal. The issue now swings from health concerns of the woman herself to avoiding the difficulties in raising a child with a disability. Hence it can be seen that genetic technology herein is used as a means not for enhancing community health but a mechanism of social control for avoiding the appearance of difference.[18] The more critical decisions are the ones where the child in the womb is diagnosed to have some mental or physical deformities and the mother decides to terminate the pregnancy. Now the woman can not only question and introspect as to whether she may want the child, but with genetic information she can ask herself if she wants this particular child. This reframes the nature of the parenting relationship, making our parenting conditional upon the child meeting certain criteria. The issue now swings from health concerns
to avoiding disability. Within this understanding of disability, genetic technology then becomes a tool not for promoting community health but a mechanism of social control for avoiding the appearance of difference. Hence one of the major difficulties faced is the fact that abortion is legal whereas prenatal diagnosis is illegal, giving way for one to still illegally determine the sex of the child and legally aborting. Therefore these two issues bring about the issue of how female foeticide is still a prevailing issue and how it is ultimately possible to commit the offence and get away with it, given that abortion is legal.[19]
to avoiding disability. Within this understanding of disability, genetic technology then becomes a tool not for promoting community health but a mechanism of social control for avoiding the appearance of difference. Hence one of the major difficulties faced is the fact that abortion is legal whereas prenatal diagnosis is illegal, giving way for one to still illegally determine the sex of the child and legally aborting. Therefore these two issues bring about the issue of how female foeticide is still a prevailing issue and how it is ultimately possible to commit the offence and get away with it, given that abortion is legal.[19]
Shortcomings and unaddressed issues:
It can also be noted that women are forced to abort the child against their wish. On account of certain beliefs that convince the family of the woman that the pregnancy is inauspicious, financial issues and other problems, she may be prone to act in contradiction with her will. If she tries to assert her interest, she may be subject to domestic violence and subjugation, and due to the patriarchy in the Indian household, the decision of the man ultimately prevails. The MTP Act does not explicitly deal with this problem faced by women though it is stated that only the woman’s consent is required to abort the child. The aspect of forced consent has not been dealt with.[20]
In the case of Shri Bhagwan Kataria and Ors. v State of Madhya Pradesh[21], a woman was forced to undergo abortion by her family against her will. The Court held the doctor liable for this act and emphasized upon the duty of medical practitioners to ensure consent of women before medical procedures. Hence the importance of consent was put forth by this case, but on the other hand in disincentivizes medical institutions from taking up certain cases of abortion, hence denying the right of women.
The case of Nikhil Datar v Union of India[22] posed major questions about the provisions of the Act when a women gained knowledge about severe foetal abnormalities only by the 24th month of her pregnancy, wherein it two weeks for the medical report to arrive. The High Court of mumbai denied the woman’s request for abortion of the foetus, failing to recognize the mental anguish that was undergone by the women. Hence Dr. Datar filed a special leave petition in the Supreme Court, challenging the provisions of the MTP Act and seeking remedy for his tormented patient, but all in vain.
It is also noticed that the law talks about contraceptive failure as a base for legal abortion but this provision addresses only married women and stays silent with respect to contraceptive failure in the case of single women.[23] The Medical Termination of Pregnancy Act allows abortion on many grounds that may be detrimental to the mental and physical well being of a woman, the discretion to determine, approve and validate the necessity for the same lies in the hands of the doctor. The Act always holds the presumption that such a medical practitioner will act for the welfare of the patient only. So it makes the patient solely dependant on members of the legal profession, offering such professionals widespread protection, rendering the patients vulnerable.[24]
The proposed bill:
There was a draft of the proposed MTP bill released in 2014. The Sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971, allows the abortion of terminally ill foetuses upto twenty weeks pregnancy. During the intervening period after the Act was enforced, several genuine cases have come up where the fact of foetuses with serious risk of abnormalities with grave risk to physical and mental risk to mother had been noticed after twenty weeks. As a result, many women were forced to move the Supreme Court for permission to end pregnancy beyond twenty weeks, leading to lot of mental and financial hardship to such pregnant women. The Bill intends to extend the permissible per
iod for abortion from twenty weeks to twenty four weeks if doctors believe the pregnancy involves a substantial risk to the mother or the child or if there are substantial fetal abnormalities. The bill also recognizes the lack of registered medical practitioners and the difficulties faced by women with respect to accessibility to quality health care. However it does not address the issues regarding consent of women and contraceptive failure as a ground for abortion in the case of unmarried women.[25]
iod for abortion from twenty weeks to twenty four weeks if doctors believe the pregnancy involves a substantial risk to the mother or the child or if there are substantial fetal abnormalities. The bill also recognizes the lack of registered medical practitioners and the difficulties faced by women with respect to accessibility to quality health care. However it does not address the issues regarding consent of women and contraceptive failure as a ground for abortion in the case of unmarried women.[25]
Further impediments:
The medico legal complications must also be taken into account. The difficulties faced by the private sector in keeping records, confidentiality of patient details in order to protect the privacy rights of women, skills and equipment in handling second trimester abortion in the proper manner and such issues must also be dealt with. There is also the predicament of situations where doctors refuse cases of second trimester abortion cases entirely on account of the fact they lack knowledge regarding if whether the woman had done an ultrasound elsewhere for determining the sex of the child, as a result of which the child is aborted. How these problems are to be handled, is a major question in India society today.[26] There are discrepancies in relation to interpretation of certain terms and phrases in the Act, such as “grave injury to physical and mental health of the pregnant woman.”[27]
In addition to this, there is a controversy in relation to how the interpretation of the Hindu Marriage act has been inconsistent with the provisions of the Medical Termination of Pregnancy Act. This has been highlighted by the case of Sushil kumar v Usha, wherein the husband had made an application for divorce, on account of the cruelty faced by him due to the wife’s decision of aborting her pregnancy. This decision was against the husband’s wishes, which was said to amount to cruelty. This case was heard by the Court even though the husband’s consent is not mandatory for abortion.[28] While it is important that the women have the right to terminate their pregnancies at will, we should also take into consideration, with the advancement in medical technology since the enactment of the law, prenatal diagnosis has not ceased to exist totally. Female foetuses were being selectively aborted in very large numbers on grounds of failure of contraception in blatant contravention of the spirit of the Act.[29]
Though the Government of India has invested a significant magnitude of resources in gathering information about the number of abortions that occur across the country, it has been discovered that these figures do not capture the correct number of abortions, as they are marked incompleteness. A major percentage of the illegal abortions are not reported, rendering the statistics unreliable for various purposes. This is because of the stigma connected with abortion, due to which many women refuse to share information about their abortion for surveys and research purposes. So there is an information gap that directly affects the policies, rules and programmes formulated by the government for improving the reproductive health of women.[30]
Conclusion:
It has been estimated that about nine to twenty percentage of the death of mothers in our country can be attributed to unsafe methods of abortion. There are many reasons behind a woman’s choice to avoid legitimate abortion techniques and consultation from trained institutions or individuals. The insufficiency in qualified medical practitioners in rural parts, the expensive fee charged by private hospitals in urban areas, lack of knowledge about the legal nature of abortion, lack of awareness regarding the importance of early abortion, i.e., during the initial months of pregnancy, fear of seeking help from multi speciality hospitals, absence of proper facilities in government run hospitals, confidentiality reasons, etc., are directly connected with the need to address the concealed issues that are present in the abortion laws of India.[31]
The Medical Termination of Pregnancy Act was supposed to herald an era which would
eliminate unwanted or forced pregnancies, or going to quacks that resulted in postnatal
trauma. The Act had left the choice to terminate the pregnancy with the medical practitioner rather than the women whose consent and choice is of utmost importance. The Act should ensure that it enhances and not reduces women reproductive rights and control over their bodies. The Act was also passed with the intent to also control the population which is appreciable, but it has failed to do so. Most of the clinics had not been approved as per the provisions of the Act, and the fact that these functioned in an illegal manner did not matter; as the public perceived that abortion had been legalized. A law which was essentially passed to curb illegal abortion ended up doing exactly the opposite. The tragedy is that this has not been recognized by the government, activists and NGOs who are in this field of work.
It has been suggested that the economic cost of treating the health effects that ensue owing to unsafe abortions is a burden on the financial resources of the women and the limited medical facilities, institutions and personnel available. Hence it is the need of the hour to cut down these costs and protect the health of women, especially in rural areas where there is lack of awareness about safer means of abortion and stigma connected with medical termination of pregnancy.[32] The abortion law in India, as it stands, has not met the expectations with which it was passed. It deprives the woman of choice and control over her body, while at the same time failing to prevent female foeticide. Thus specific aspects of the framework of the law needs to be re-examined and amended since it has failed to meet its objectives.
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[1] The author is a 3rd year B.A., LL.B. (Hons). Student in School of Law, CHRIST (Deemed to be University), Bangalore – 560029.
[2] World Health Organisation, “Safe Abortion: Ethical and policy Guidance for Health Systems”, 2nd ed., 2012. Available at https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D4F5A42E0543493BDFA27004FA1C394?sequence=1 (Viewed on 10/5/2019, 11:27 A.M.)
[3] Mary Philip Sebastian, M.E. Khan and Daliya Sebastian, 2013. “Unintended Pregnency and Aboration in India with Focus on Bihar, Madhya Pradesh and Odisha.” New Delhi, India: Population Council.
[4] Amar Jesani, and Aditi Iyer, “Women and Abortion”, 27 Economic and Political Weekly (1993).
[5] Medical Termination of Pregnancy Act, 1971.
[6] Id.
[7] 410 U.S. 113 (1973).
[8] Menon, N. R. Madhava. “POPULATION POLICY, LAW ENFORCEMENT AND THE LIBERALIZATION OF ABROTION : A SOCIO-LEGAL INQUIRY INTO THE IMPLEMENTATION OF THE ABORTION LAW IN INDIA.” Journal of the Indian Law Institute 16, no. 4 (1974): 626-48.
[9] Rao, N. Baskara, et al. “Criteria for Denying Medical Termination of Pregnancy.” Economic and Political Weekly, vol. 12, no. 48, 1977, pp. 1985–1986.
[10] Chattopadhyay Savithri, “Medical Termination of Pregnancy Act, 1971: A Study of the Legislative Process”, Journal of Indian Law Institute, 16(4), 1974, 549-69.
[11]Amar Jesani, Aditi Iyer. “Women and Abortion.” Economic and Political Weekly, vol. 28, no. 48, 1993, pp. 2591–2594. JSTOR, JSTOR, www.jstor.org/stable/4400452.
[12] Jain, Anita. “Sex Selection and Abortion in India: Efforts to Curb Sex Selection Must Not Retard Progressive Safe Abortion Policies.” BMJ: British Medical Journal, vol. 346, no. 7902, 2013,
[13] Id.
[14] Mohan, Raj Pal, and Raj Pa Mohan. “Abortion in India.” Social Science, vol. 50, no. 3, 1975, pp. 141–143. JSTOR, JSTOR, www.jstor.org/stable/41885953.
[15] Visaria, Leela, et al. “Abortion in India: Emerging Issues from Qualitative Studies.” Economic and Political Weekly, vol. 39, no. 46/47, 2004, pp. 5044–5052. JSTOR, JSTOR, www.jstor.org/stable/4415809.
[16] Saseendran Pallikadavath, and R. William Stones. “Maternal and Social Factors Associated with Abortion in India: A Population-Based Study.” International Family Planning Perspectives, vol. 32, no. 3, 2006, pp. 120–125.
[17] Dhar M, Payal YS, Krishna V. The Pre-Conception and Pre-Natal Diagnostic Techniques Act and its implication on advancement of ultrasound in anaesthesiology; time to change mindsets rather than laws. Indian J Anaesth 2018; 62:930-3
[18] S.G. Kabra, Abortion in India: Myth and Reality, Rawat, Jaipur, 2013, 155-161.
[19] Madan, Kamlesh and Breuning H., Martijn. “Impact of Prenatal Technologies on the Sex Ratio in India: An Overview.”
[20] Varkey, P., Balakrishna, P., Prasad, J., Abraham, S., & Joseph, A. (2000). The Reality of Unsafe Abortion in a Rural Community in South India. Reproductive Health Matters, 8(16), 83-91.
[21] M.P [(2001) 4 MPHT 20 (CG)]
[22] 2008 (110) Bom LR 3293
[23] Chhabra, S., et al. “Medical Termination of Pregnancy and Concurrent Contraceptive Adoption in Rural India.” Studies in Family Planning, vol. 19, no. 4, 1988, 244–247.
[24] Joseph Minattur, “Medical Termination of Pregnancy and Conscientious Objection” 16(4) JILI (1974).
[25] Ministry of Health and Family Welfare, Draft Medical Termination of Pregnancy Amendment Bill, 2014.
[26] Dalvie, Suchitra S. “Second Trimester Abortions in India.” Reproductive Health Matters, vol. 16, no. 31, 2008, pp. 37–45. JSTOR, JSTOR, www.jstor.org/stable/25475399.
[27] Geeta Ramaseshan, “Abortion are not for the asking”, 9 Lawyers Collective 25 (1994).
[28] AIR 1987 Del 86.
[29] Id.
[30] Susheela Singh, Chander Shekhar, Rajib Acharya, Ann M Moore, Melissa Stillman, Manas R Pradhan, Jennifer J Frost, Harihar Sahoo, Manoj Alagarajan, Rubina Hussain, Aparna Sundaram, Michael Vlassoff, Shveta Kalyanwala, Alyssa Browne, “The incidence of abortion and unintended pregnancy in India” Lancet Glob Health, 6, 2018, e111-120.
[31] Supra Note 3.
[32] Supra Note 2.
