By Adrija Jayanthy:
Across the world, abortion is still a contentious issue. Pro-life and pro-choice debates have serious implications for abortion regulation. The debate on abortion is not as simple as abortion being “legal” and “illegal” in different countries. This debate can affect the degree of recognition of women’s autonomy over their reproductive and health choices in terms of regulation of abortion. In most countries, abortion is regulated in terms of whether it can be done or not, and if yes, when and with what legal requirements. There are criminal consequences for those who violate abortion laws. A study on abortion laws across the world done by the Centre for Reproductive Rights groups countries into four categories in terms of their abortion laws. Category 1 includes countries that prohibit abortion completely unless it is to save the life of the woman. Category 2 countries are countries that allow abortion recognizing a woman’s right to preserve her health. Category 2 is broader than Category 1 as it goes beyond emergency abortions conducted to save the life of the woman and recognize her right to health (mental and physical). Category 3 countries allow abortion on socio-economic grounds. Socio-economic reasons for abortion can be related to the age, economic status, or age of the woman. A woman’s environment is taken into account when establishing a framework for her health and how an abortion can affect it. Category 4 countries allow abortion without restriction as to reason.
India is presently a Category 3 country. Up until 1971, it was absolutely illegal for a pregnant woman in India to abort her child, even if her life was at stake. Then, the Medical Termination of Pregnancy Act, 1971 (hereinafter “MTPA”) was enacted. This law was designed with the intent to stop sex-selective abortion. It allows abortion of a fetus only under specific circumstances.
The law recognizes two parties who may suffer by allowing a pregnancy to continue to term — the mother and the unborn child. There are only two circumstances in which an abortion can be legally allowed. The first is when either the life and health (mental or physical) of the pregnant woman is at stake due to the pregnancy. The second is if the unborn child is going to suffer from any physical or mental abnormalities which will make it handicapped after it is born. To understand whether the health of the woman is going to be affected, the medical practitioners conducting the abortion are supposed to look at the environment she lives in currently and the environment she will likely live in after the abortion. The aim is to understand what sort of social circumstances she will be subject to and the repercussions she will have to face due to her decision to abort, and if it will affect her mental and physical health in any manner.
Indian law recognizes two specific instances in which it is assumed that the woman’s mental health will be affected due to a pregnancy, necessitating an abortion. Many pregnancies occur without the consent of the women — either when the sex was not consensual or when there was no intention of procreating. The law recognizes only two instances when pregnancies without consent require an abortion. The law specifically states that if a woman has been raped, her mental health has been affected. Also, if a married woman and her husband have used contraceptives and the contraception has failed, the resulting pregnancy can be understood as affecting the mental health of the pregnant woman. In these two circumstances, an abortion will be allowed within 20 weeks of the pregnancy.
Unfortunately, this does not apply to unmarried women who have used contraceptives. However, this does not mean that unmarried women cannot get an abortion. If a medical practitioner believes that their mental health will be affected by the continuation of the pregnancy then the abortion will be legally allowed.
This assessment of whether either the mother or the child to born is going be affected is decided by either one or two medical practitioners. The law requires that if the fetus is less than 12 weeks old, one medical practitioner has to decide if termination is suitable. If the fetus is more than 12 weeks old and less than 20 weeks old, then two medical practitioners have to decide if an abortion can be done legally.
In the spectrum of regulation of abortion across countries, there are many countries that create legal barriers to abortion. Such barriers sometimes require a woman to get her spouse’s signature or require her to notify an authority. In Indian law, only the consent of the woman is required to conduct the abortion. There are no legal barriers to access abortion. A form (Form C) consenting to the abortion must be signed by the woman, giving her name, age, and permanent address. Whoever causes an abortion without the consent of the woman will be punished with imprisonment for life, or with imprisonment for a term which may extend to ten years, and shall also be liable to fine.
It’s important to note that women who are less than 18 years of age can only terminate their pregnancy with the consent of their guardian. Guardians will have to give consent on behalf of a woman suffering from mental illness. As per the MTPA, a mentally ill person is a person who requires medical treatment because of a disorder. This definition is extremely limited in disability jurisprudence.
The law requires that all abortions must be conducted by a “registered medical practitioner” who possesses a medical qualification recognized by the Indian Medical Council Act, 1956. This definition is quite restrictive, as it limits the number of qualified practitioners who can perform an abortion. The Central Government has specified the training and experience qualifications of doctors who are legally allowed to conduct abortions. Examples of the qualifications include experience in assisting in as many as 25 medical terminations of pregnancy of less than 12 weeks, and experience and training in gynaecology and obstetrics.
The requirement of experience or training in gynaecology and obstetrics is relaxed in cases where an emergency abortion has to be done to save the life of the pregnant woman.
To regulate abortions, especially in light of rampant female feticide in the country, the government has restricted the places where an abortion can happen. An abortion can only be done in hospitals specified by law. Termination of a pregnancy cannot take place in private places unless they take approval from the government. Abortion can only happen in a hospital established or maintained by the Government or in a place that is approved by the Government or District level Committee constituted by the Government. Further, a place that wants to qualify under the law to conduct abortions must have specific equipment. The owners must sign a form vouching that they are authorized to conduct an abortion and that they have the legally-required equipment.
Requirements relating to the length of the pregnancy and the opinion the medical practitioners do not always apply. In a case where a registered medical practitioner believes the termination of a pregnancy is immediately necessary to save the life of the pregnant woman, then an emergency abortion can be done.
The Medical Termination of Pregnancies Act, 1971 does not talk about termination based on sex. Due to the rampant rise in sex-selective abortions after the enactment of this law, the Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994 was enacted. Under this law, sex-selection and abortion based on sex is prohibited entirely.
The Indian Penal Code punishes any woman who tries to terminate her pregnancy for reasons other than having to save her own life. A woman needs the opinion of medical practitioners to terminate her pregnancy unless it is to save her life in an emergency. The criminal punishment is from three years to seven years jail time, depending on the stage of development of the fetus. This criminalization creates a regime of restricting women’s rights to decide their own reproductive health.
Further, the MTPA has stringent provisions against people terminating pregnancies in places that are not allowed under the law and owners of a place that is not permitted to terminate pregnancies.
A proposed 2014 amendment to this law changed the definition of “registered medical practitioners” to a “healthcare provider”. The term “healthcare provider” is broader in scope and includes people who have recognized medical qualifications in Ayurveda and Homeopathy, as well as nurses and midwives with recognized training. The amendment also allowed for pregnancies to be terminated irrespective of the length of the pregnancy when any fetal abnormalities are detected. However, this Bill was not passed. A proposed 2017 amendment also extended the term of termination from 20 weeks to 24 weeks.
These amendments have heavy implications for women’s access to timely and safe medical help for in seeking termination of their pregnancies. Further, the proposed amendments for increasing the time period of termination from 20 weeks to 24 weeks and to allow for termination irrespective of length of the pregnancy when any fetal abnormalities exist are both to ensure that correct diagnosis of the health of the fetus before termination is allowed.
The Indian legal framework for abortion goes only so far as to allow abortion in exceptional circumstances. It is also limited in terms of its framework for allowing immediate and safe medical care for women who need to terminate their pregnancies. Amendments to broaden the scope of access to safeguard the women’s and child’s health would largely improve their situation.