India was one of the 15 countries that passed a liberal abortion law in 1971.
The Supreme Court has recently intervened in cases where women have sought abortion because the foetus is deformed, triggering demands to allow women to determine the course of their pregnancies. India was one of the 15 countries that passed a liberal abortion law in 1971. Today, the government must bring it in line with international standards and reflect both medical advances and the rights of women over their own bodies.
It is estimated that 11.5 million abortions take place in India every year, a significant proportion of the global annual figure of 56 million. In India, unsafe abortion is the third biggest cause of maternal deaths. This is a matter of concern in modern times, when, as the WHO states, “When performed by a skilled provider using correct medical techniques and drugs, and under hygienic conditions, induced abortion is a very safe medical procedure”. There is an urgent need to identify gaps in ensuring availability of comprehensive abortion care (CAC) services for women and preventing deaths and disabilities. Chief among these is the lack of access to safe abortion services, apart from a general lack of awareness among women, particularly those in rural and remote areas of the country.
Abortion has been legal in India by virtue of the Medical Termination of Pregnancy (MTP) Act, passed in 1971, which allows for termination of pregnancy up to 20 weeks of gestation for a broad range of conditions including when continuation of pregnancy is a risk to her physical or mental health, if pregnancy is a result of rape or incest, foetal abnormality, or failure of contraceptive method used by a married woman or her husband.
Under Section 5 of the law, upper gestation limit of 20 weeks does not apply when it is necessary to conduct terminations any time during the pregnancy to save the woman’s life.
When this law was passed over four decades ago, the only available technology for termination of pregnancies was dilatation and curettage (D&C) — now an outdated invasive medical procedure — that required the use of anaesthesia for removing products of conception using a metal curette. The safety provisions in the law, including provider definition, training requirement, opinion etc, were defined keeping women’s safety in light of this technology.
The then progressive law has today lost its relevance in light of recent technological advancements. Newer and safer technologies that make abortion a very safe out-patient medical procedure that can be completed using manual vacuum aspiration (MVA) or a combination of prescription drugs (medical abortion) are considered to be the gold standard today.
These technologies do not require services of specialist doctors, and world over there is a trend now towards task-shifting for safe abortion to other cadres of healthcare providers. Another critical factor to be aware of is the significant improvement in diagnostic techniques for determining foetal abnormalities incompatible with life.
The proposed amendments to the MTP Act in 2014 included, one, a proposal to expand the provider base and allow AYUSH providers, nurses and ANMs to conduct early terminations after training, and, two, increasing the gestation limit from 20 to 24 weeks for vulnerable categories of women further to a recommendation from the National Commission for Women.
This proposal underscored additional challenges faced by some categories of women like survivors of rape and incest, very young women, women with disabilities etc. Recent court cases reiterate the need for increasing the gestation limit to 24 weeks for such and more vulnerable categories of women.
Another significant feature of the proposed amendments is that no upper gestation limit for termination of pregnancy would apply in case of diagnosed foetal abnormalities incompatible with life. This is in line with international standards and global recommendations.
The proposed amendments also make provisions for contraceptive failure to apply to all women and men, removing the marriage criterion that is otherwise not applicable to any other condition for termination under law.
If we look at abortion laws in the rest of the world, 60 countries have laws prescribing gestational limits. 52 per cent, including inter alia France, the UK, Austria, Ethiopia, Italy, Spain, Iceland, Finland, Sweden, Norway, Switzerland and even our neighbouring country Nepal, allow for termination beyond 20 weeks on diagnosis of foetal abnormalities. Laws in 23 countries, including countries as diverse as Canada, Germany, Vietnam, Denmark, Ghana and Zambia etc., are truly liberal, allowing for abortion any time during the pregnancy on request of the woman — for social reasons and foetal abnormalities.
Recent cases in the Supreme Court have brought out the debate on diagnosis of foetal abnormalities and women’s agency to exercise their reproductive rights for termination of pregnancy.
Women’s groups have strongly argued for reducing regulation of pregnancy outcomes for women and allowing women to be the judge for the course of their pregnancy. The decision to continue a pregnancy (or not) is very personal and women have their reasons for the same. Women are owners of their bodies as well as caretakers of their families. The decision about when to have children, the number of children and how to care for them, is theirs and theirs alone. While arguing very strongly for provisions for managing pregnancies with confirmed foetal abnormalities incompatible with life, it needs to be understood that less than two per cent of women experience such a situation in their pregnancy. India was one of the 15 countries that passed a liberal abortion law in 1971. Today, it must amend the law and bring it in line with international standards and global recommendations. But, women of this country are still waiting for the legislature to take a decision, making it a reality.
There is a need to also focus on strengthening programme implementation strategies and community level action on abortion. Research shows that even today, less than 20 per cent of women are aware that abortion is legal in India. The stigma around abortion takes precedence over the law and becomes a compelling factor leading women to choose unsafe pathways for termination of pregnancy when they should have access to the same, free-of-cost, from public health facilities.
We need to address these social barriers and strengthen women’s access to safe abortion services, and hold ourselves accountable for the needless deaths and disabilities faced by women in a liberal legal environment.
Unsafe abortion is the third biggest cause of maternal deaths in India
20% women are aware that abortion is legal in India.
India: 11.5 mn abortions take place every year.
Globally: 56 mn abortions are done every year.
March 2017: The Supreme Court rejected a plea made by a 37-year-old woman from Maharashtra to terminate her 26-week-old foetus on the ground that it suffered from Down’s syndrome after a medical board advised it. The Supreme Court held that Down’s Syndrome is not a life-threatening condition, and that there is no physical risk to the mother from the pregnancy.
July 2009: The Supreme Court allowed a mentally-challenged rape victim who doctors said had a maximum IQ of a nine-year-old to give birth to her baby, saying nature will “take care” of the orphan mother and child.
In 2008, the Bombay HC denied a woman, whose foetus had been diagnosed with a congenital heart defect, permission to abort her 26-week foetus. The court held that abortion of the foetus was only permissible within 20 weeks. As there was no risk to the life of the pregnant woman, the court denied the petitioners the right to abort the foetus.
(The author is executive director of Ipas Development Foundation, an NGO that has been working closely with the government at the national and state levels for over a decade to increase women’s access to comprehensive abortion care with the purpose of reducing deaths and disabilities faced by women. For more information visit www.ipasdevelopmentfoundation.org)