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India’s Abortion Law Fails To Fully Protect A Woman’s Reproductive Rights

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By Kunal Basu

Recently there has been a legal debate over the constitutional validity of the Medical Termination of Pregnancy Act, 1971 vis-à-vis an individual’s constitutional right to abort a foetus within the ambit of the law.

There are several issues with the law that need to be addressed. One of the issues with the Act can be explained well with the 2011 Niketa Mehta case wherein the woman (Mehta) had a nervous miscarriage after seeing a certain physical abnormality in the foetus that had happened due to a congenital heart disease.

Her application for abortion was turned down by the Bombay High Court in a ruling that said that such an act would violate the constitutionality of an individual’s right to life. It is very tragic that the High Court’s view was so parochial in approach to the extent that it caused the petitioner (Mehta) to suffer a miscarriage.

Fortunately, the Apex Court on further appeal overturned the High Court’s ruling because there was a grave possibility that the woman could suffer from a nervous shock that could be detrimental to her health which is why the abortion was permitted.

In the United States, the legal position on a woman’s right to seek an abortion is very clear. In the historic ruling stated in Roe vs. Wade (1973), it was held by a majority of the Supreme Court justices that the right to undergo an abortion is a fundamental right of every person under the Ninth and Fourteenth Amendments of the Constitution read in pari materia (statutes that share a common purpose).

Hence, any statutory law that attempted to restrict this right that a woman had to abort a foetus was to be tested on the anvils of fundamental rights guaranteed under the American Constitution. The right to abort a foetus must be legally consistent at all times with an individual’s right to claim privacy under the Ninth Amendment of the American Constitution.

In India, there is no specific law that makes way for the right to abortion to be made into a  fundamental right. Although Article 21 of our Constitution specifically says that no person is to be deprived of their right to life except according to procedure established by law, yet statute law is silent on whether abortion ought to fall into this category.

The Ninth Schedule of our Constitution provides for the protection of certain laws, whose constitutional validity would fall outside the ambit of judicial inspection. However, it is ironic that a sensitive issue like abortion is not on the schedule.

Quite recently, the Supreme Court allowed a rape survivor to terminate her 24-week-old pregnancy because the foetus posed a vital threat to her life.

Although the law says that a person can’t terminate a pregnancy after 20 weeks, the Court, in granting judicial leeway, permitted the same on the grounds that if the foetus was not aborted in time, it could have dangerous repercussions on the woman’s life. However, this ruling is not comprehensive in its approach, but can be applied on a case-to-case basis.

Under Section 3(2) of the MTP (Medical Termination of Pregnancy) Act states that medical abortion is permitted if the pregnancy period does not exceed 12 weeks.

A woman can’t terminate the pregnancy after 20 weeks, but there is always a possibility that there could be several mental and physical health risks to the woman during this period, including dangers caused to her life because of the foetus as has been mentioned before.

The law failed a 14-year-old pregnant rape survivor in Bareilly who was forced to give birth to a child she wasn’t emotionally and financially equipped to raise, and didn’t want in the first place. According to the law, in case the woman is a rape survivor, Explanation 1 to the section mentioned above states that registered medical professionals may terminate pregnancies, as “the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”

The better approach would be to follow the Roe ruling, as that would provide a way out of the complexities of the legislative and judicial processes on the law on abortion.

In many states, abortion is carried out in ways that are not recognised by law. People don’t visit qualified medical professionals for a reasoned opinion on whether or not to perform an abortion, post meeting the legal requirements of Section 3 of the MTP Act. Abortions are carried out by ‘Quacks’ and ‘Unani Doctors’ – people with no formal medical training who take pride in having the know-how and technical ‘expertise’ to facilitate an abortion using primitive means such as midwifery. Such practitioners are not well versed in medical procedures, such as using local anaesthesia and proper surgical equipment. They follow methods when employed have a high risk of causing an unwanted death.

Although this is illegal, the MTP Act is toothless and can’t curtail such medical malpractices, as the law relating to abortion is, in itself, legally ambiguous and subject to judicial scrutiny.

Instead of subjecting the MTP Act to constitutional validation tests, it would be incumbent if the abortion law in India was amended suitably, so as to allow a woman the right to abort her foetus on reasonable grounds. As much as a woman has the right to decide whether or not to engage in the process of reproduction, she also has the right to get an abortion.

The law enshrined in international legislations, covenants and conventions such as the International Conference on Population and Development (ICPD) clearly state that the right to give birth to a child is as much a legal right of every woman, as much as the right to abort.

I am not fully trained to be an advocate but provisionally enrolled as one with the State Bar Council. But as an individual, I am of the legal viewpoint that Sections 3 and 4 of the Medical Termination of Pregnancy Act, 1971 be urgently amended as expediently as possible. Such an amendment shall give women from all backgrounds the right to pursue an abortion if it is necessary for their mental and physical well-being.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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