Forced Motherhood: The Abortion Law In India

Posted by Anamika Jha in Society
August 17, 2017

We live in an era when everybody is talking about women’s rights, but the basic right of bodily autonomy, especially with respect to reproductive rights, is subject to huge contradictions. Access to safe abortion services and post abortion care should be the right of every woman irrespective of her marital or social status. There are dramatically contrasting abortion legislations around the globe because of the legal, moral and ethical dilemmas attached to it. In some countries, abortion is a matter of personal choice while in others it is absolutely illegal. In most cases, abortion is a qualified right subject to extraordinary conditions like a danger to the life of the mother, fetal impairment or cases of rape.

In India, abortion is a qualified right under the Medical Termination of Pregnancy Act, 1971.  Now the question is whether the present law is sufficient to help women avail safe termination of pregnancy as a right? The answer is a ‘no’. A woman does not have the sole say in the abortion. The Act bars abortion if the pregnancy has crossed the 20-week mark unless a registered medical practitioner certifies to a court that the continued pregnancy is life-threatening for either the mother or the unborn child would suffer from ‘physical or mental abnormalities’ or may be ‘seriously handicapped. Thus, after 20 weeks a woman cannot medically terminate the pregnancy without a Court order subject to the only exception i.e. immediately necessary to save the life of the pregnant woman. This cumbersome legal procedure forces women to approach various district courts for permission to medically terminate pregnancies over 20 weeks. A majority of these appeals belong to vulnerable individuals like child rape survivors, destitute women, women with substantial fetus abnormalities etc.

The maximum permissible limit must be kept after due consideration given to the life of the fetus after birth, and the mental, physical and emotional anguish of the mother. Presently, the 20 weeks ceiling for legally permissible pregnancy is insufficient. In the majority of the cases, substantial fetal abnormalities are detected only between sixteen and 22 weeks. The parents also need some time to ponder over whether they want to continue with the pregnancy or not. So, there can be the strong case of the termination of pregnancy after 20 weeks. Therefore, it is important to increase the present ceiling.

The two explanations of Section 3 of the Act allow us to conclude that only married women and rape survivors are permitted to abort at the sole ground of unwarranted pregnancies. No other woman like an unmarried woman, widowed or divorcee has this right. They are either forced to continue the unwarranted pregnancy or have to go for illegal and unsafe abortions. Even married women have to prove that the pregnancy was due to the failure of contraceptive measure. Proving such intimate details is the direct violation of right to privacy. In a conservative society like ours where sexual agency outside the marital relationship is subject to severe criticism, the lack of the access to safe abortion services renders women vulnerable to exploitation and illegal abortions. According to a World Health Organisation report, in India, the access to safe abortion through the public health system is mainly restricted to cities. Despite a mandate to provide abortion services, less than 20% of primary health care centres provide such facilities in most of the states. Many centres occasionally provide the service either because of a shortage of trained doctors or poorly functioning equipment.

In 2014, the Ministry of Health and Family Welfare released a draft of the MTP (Amendment) Bill 2014 with an objective to shift the focus of the Indian abortion discourse from health care providers to women. Another welcomed step in the Bill is the explicit inclusion of abortion care to unmarried women in the case of unwarranted pregnancies. The gestational limit for abortion has been proposed to extend to 24 weeks subject to exclusion of specific fetal anomalies after this period. There has been the criticism for allowing non-allopathic and mid-level healthcare providers to perform abortions which I believe is the subject of discussion. There is also the requirement for the formation of permanent bodies dealing specifically with the access to abortion. Recently, the Apex Court has urged the government to set up permanent medical boards across the country for expedient access to abortion care to women, especially child rape survivors

Unfortunately, the amendment Bill has been in the cold storage for the past three years. This is distressing that the crucial issue like the amendment to MTP Act has been the subject to such ignorance. The access to safe abortion is the basic human right of a woman. The law must be changed with an immediate effect to give the bodily autonomy to women and decrease their vulnerability from subjective interpretations by medical practitioners and courts. Robust laws without any discrimination is the need of the hour to save women from the danger lifelong distress of carrying unwarranted pregnancies and opting for unsafe and illegal abortion.