What’s wrong with India’s abortion laws?

GenderAnd Development: The tricky debate on Abortion: Where the Medical Termination of Pregnancy Act conflicts with two other laws? 

Updated: December 6, 2017 1:38 pm

This August, the denial of abortion to the 10-year-old rape survivor from Chandigarh by the Supreme Court made headlines, shocking the country and leaving the medical community split in opinion. While the young girl has been recuperating at home from her C-section delivery and from what could only have been mental and physical trauma, the onslaught of women and girls seeking permissions for late-term abortion to High Courts and the Supreme Court continues. On November 22, PTI reported that a 12-year old rape survivor from Khargone, Madhya Pradesh gave birth under C-section after her abortion plea was rejected by the High Court, citing her age and risk, earlier in September. This little girl’s pregnancy had been first discovered more than three months ago in August. While it was then just over 20 weeks, following the letter of law, abortion had been treated a foregone option and denied.

The Medical Termination of Pregnancy (MTP) Act of 1971 permits abortions after consultation with one doctor up to 12 weeks. Between 12 to 20 weeks, medical opinion of two doctors is required. Further, only a registered allopathic physician in a registered facility is authorised to conduct the procedure. Beyond the 20 weeks ceiling, exceptions are legally permissible only if continuation of pregnancy poses a threat to the mother’s life.

The 46-year-old law has been under fire from doctors and lawyers for failing to move ahead with the times. There are several issues. The gestational age limit of 20 weeks on abortions is today understood as arbitrary and grossly outdated by gynaecologists and obstetricians across the board. Rare foetal abnormalities can be detected via ultrasound only around this period and the mother is usually past the 20-week milestone by the time these can be confirmed. Further, the Act does not recognise a woman’s choice in asking for an abortion, as legally she remains at the disposal of a physician’s judgment even in the early stages of pregnancy.

The influx of court petitions 

While MTP Act itself does not direct anyone to approach the court for permission to terminate pregnancy post-20 weeks, the recent few years have seen a rush of court petitions seeking permission for abortion. Often these have been either rape survivors with unwanted pregnancies or couples who found out about foetal abnormalities that are either incompatible with survival or posed the risk of substantial handicap to the baby upon birth. The curious aspect is why these cases are suddenly coming to court with increasing frequency only now, despite the fact that the MTP law is unchanged, and issues of foetal abnormalities as well as rape-related unwanted pregnancies in minors are something doctors have always dealt with in professional capacity.

“If you ask any obstetrician in this country who has practised for 10-20 years, you will find that they have always terminated pregnancies of advanced [post 20 weeks] durations on obstetric and medical grounds,” says Dr. Nozer Sheriar, former Chairperson of the MTP Committee and secretary general at Federation of Gynaecologists and Obstetrician Societies of India (FOGSI).

Advance prenatal diagnoses, which enable foetal abnormalities to be discovered typically between 20-24 weeks, became routine around two decades ago. Managing the aftermath was not considered by most gynaecologists as traditional MTPs. Until a few years ago, most gynaecologists all over the country were managing abnormal patient pregnancies, along with termination if needed by taking a medical call over the matter, after counselling the patient and with her written permission.

The gynaecologist/obstetrician of the patient maybe in the best position to make a medical decision based on risk, in some cases. But the Supreme Court and High Court judgments over the last few years have been inconsistent and ad-hoc on these matters; they have both permitted as well as turned down various women requesting abortions and hence now doctors are unsure about their decision-making territory. “Because of all these cases coming up, physicians are also confused as to whether to term them as MTPs or obstetric decisions. I think clarity is urgently needed in this matter,” says Dr. Jaydeep Tank, a Mumbai-based gynaecologist and obstetrician and Deputy Secretary General of FOGSI. He personally feels that such cases should not strictly fall under the MTP Act as they could interfere with the obstetrician’s decision making.

Abortion law, its run-in with POCSO

A pregnant minor, under the MTP Act, can legally receive an abortion with the consent of a legal guardian. Under the Protection of Children from Sexual Offences (POCSO) Act 2012, any sexual activity under the age of 18, even if consensual, comes under the scrutiny of law. Thus, if any adolescent goes to a doctor seeking any services related to reproductive health, including abortion, the doctor is mandatorily required to report that to the authorities. So while MTP Act regulations lay down a careful confidentiality procedure for the doctor to protect the identity of the abortion-seeking girl, POCSO on the other hand necessitates disclosure to the authorities. “A lot of 17-year-olds, who would have gone to a doctor because that would have been the right way to get an abortion, suddenly now think ‘if I go to the doctor, the police will be informed. So maybe I am better off somewhere else’,” Dr. Sheriar explains.

The situation has became more dire, after the Supreme Court last month got rid of the exception for child brides and increased the age of consent to 18, regardless of marital status. While the intention behind the POCSO provision is well meaning, an estimated 47 percent of women in India are still married under the age of 18 and hence considerable sexual activity does take place among minors. The conflict between the laws results in a collateral damage where adolescents may be forced to turn to unsafe abortions.

Abortion Law and Sex Determination

Another law that trips doctors from performing genuine abortions is the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 (PC-PNDT) which criminalises sex determination of the foetus during ultrasound. Often, law-enforcing authorities feel that if they indiscriminately crackdown on abortions in general, they will be able to prevent sex-selective ones and female foeticide, Dr. Tank explains.

With a lot of attention and pressure from authorities due to PC-PNDT, doctors are wary and not doing what they initially did with a clear conscience, says Dr. Sheriar. As one senior gynaecologist running a private hospital said, “Even though I have performed an abortion for a genuine reason, in case the aborted foetus turns out to be a female, who would want to get caught up in a cycle of giving explanations in government offices” or worse, risk having their establishment discredited over such an accusation.

Given the present circumstances, doctors feel that urgent clarifications are required on the matter because when providers of safe and legal abortions turn women away, the remaining gap is filled by unqualified persons and quacks. “Just because of a fear of misuse, creating no mechanism and giving no relief to genuine people is wrong,” says gynaecologist and health rights activist Dr. Nikhil Datar.

Only a handful of women–make it to the courts, where they currently face additional trauma due to delays of legal proceedings, all the while with a pregnancy that is steadily advancing. Asked what happens to all the other women and where they go, Dr. Datar says, “No one knows”.

In cold storage: MTP Act OF 2014

A historic abortion legislation like India’s MTP Act in the 70s ensured that only law and medical opinion, as opposed to any religious dogma, prevailed in matters of pregnancy terminations. It also necessitated the consent of the pregnant woman alone, assuming she was a major. But a progressive law alone did not guarantee access to safe abortions. 10 women die everyday in India due to unsafe abortions and many more suffer from complications as a result of it.

“The cases that have come to the courts and in the spotlight of media are in the direction of foetal abnormalities and rape pregnancies. But that is a very small percentage out of all women deprived of safe abortions,” says Vinoj Manning, Executive Director of Delhi based non-profit Ipas Development Foundation. Currently, 50 percent of all abortions performed in India are estimated to put women’s health and lives to undue risk and that is above all due to an acute shortage of trained providers. This is one of the issues that the MTP Act Amendment bill, proposed in 2014, aimed to solve by authorizing AYUSH doctors, trained nurses and auxiliary nurse-midwives (ANMs) – after mandatory training — for performing non-surgical abortions via pills. The bill is however in cold storage and not taken up by the parliament since October 2014.

In addition to the fact that a woman’s right to abortion is a necessary condition for her reproductive autonomy, there is also a dire need to keep the woman’s needs at the center from a public health perspective. As Dr. Suneeta Mittal, Director and HOD in Obstetrics & Gynaecology at Fortis Medical Research Institute Gurgaon, who has worked in women’s healthcare for nearly 40 years, said in a recent panel discussion, “No legal barrier, no religious barrier, no administrative barrier and no political barrier can stop a woman from getting an abortion, if she decides not to continue [her pregnancy]. By refusing her, you are pushing her towards unsafe abortions”.

Use #GenderAnd in your tweets and join the conversation