This is the era when everybody is talking about women’s rights but the basic right of bodily autonomy with respect to reproductive rights is subject to huge contradictions. Access to safe abortion service and post-abortion care should be the right of every woman irrespective of the marital or social status. There are dramatically contrasting abortion laws around the globe because of the legal, moral and ethical dilemmas attached to abortion. In some countries, abortion is the matter of personal choice while in others it is absolutely illegal. In most of cases, abortion is a qualified right subject to the 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 the women to avail safe termination of pregnancy as a right. The answer is a ‘no’. As per a study by the Lancet, 78% of the total abortions conducted in India in 2015 were done using unsafe methods which contributed to 8% maternal deaths. This devastating data clearly indicates lacuna in the abortion laws in India.
A woman does not have the sole say in the performance of 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 baby or unborn child would suffer from ‘physical or mental abnormalities’ or may be ‘seriously handicapped’. Thus, after twenty weeks a woman cannot medically terminate the pregnancy without the Court order subject to the only exception i.e. the immediately necessary to save the life of the pregnant woman. This cumbersome legal procedure forces women to approach from district courts to the Supreme Court for permission to medically terminate the pregnancies over 20 weeks. The majority of these women belong to vulnerable sections like child rape victims, destitute women, women with substantial fetus abnormalities etc.
The maximum permissible time limit must be decided only after due consideration of all the relevant factors including the life of the fetus after birth, and the mental, physical and emotional anguish of the mother. The present 20-week ceiling for legally permissible pregnancy is insufficient. In a majority of cases, substantial fetal abnormalities are detected only between 16 and 22 weeks. Further, 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 1971 Act also covers single unmarried adult women, except for one clause reserved for married women which is abortion because of contraceptive failure. 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 WHO report, in India, 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 be extended to 24 weeks subject to exclusion of specific fetal anomalies after this period. There has been criticism of the Bill for allowing non-allopathic and mid-level healthcare providers to perform abortions which I believe is a subject of discussion. There is also the requirement of 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 victims.
Unfortunately, the amendment Bill has been in the cold storage for the past three years. This is distressing that a crucial issue like the amendment to MTP Act has been the subject to such ignorance. The access to safe abortion is a basic human right for 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 are the need of the hour to save women from the danger of lifelong distress of carrying unwarranted pregnancies and unsafe and illegal abortion.