For its time, the Medical Termination of Pregnancy (MTP) Act, 1971 in India was miles ahead of legislation on abortion in many other countries. For a start, it legalised abortion and did not concern itself with the controversial question of the stage at which the foetus should be considered a baby (pro-life vs pro-choice). The law is applicable across religions and doesn’t bow down to any specific religious convictions.
Even now, I would say that the provisions laid down are miles ahead of many other countries. Still, the law is fraught with problems and it’s revision according to current medical and social standards is the need of the hour.
The Union Ministry of Health and Family welfare first introduced the MTP Amendment Bill in October 2014. Since then it has been stuck in a legislative logjam, and the latest affidavit submitted on August 2, 2019, by the Union Health Ministry states that the draft bill has been sent for inter-ministerial discussion.
The raising of the 20-week limit has been met by a firm no by the Centre, which stated that “Petitioners on their right to reproductive autonomy does not outweigh the interest of the state in protecting the life of a foetus in the womb, especially from the point of validity i.e. from the period of 20 weeks onwards.”
The affidavit also stated that “the personal freedom of choice of an individual cannot infringe on the rights of other individuals,” essentially setting a precedent on the pro-life/pro-choice debate single-handedly. This has very grave consequences for a country with one of the largest female populations in the world, and one can only hope that better sense prevails in the Supreme Court.
Even though the MTP does allow women to abort, it’s a ‘qualified‘ right. Up to 12 weeks into the pregnancy, the approval of a certified medical practitioner is required. Between 12-20 weeks, approval from two medical practitioners is needed. And, post the 20-week threshold, they need to approach the courts to get permission. This limited freedom has the caveat that the abortion can only be done if there is deemed a significant risk (mental or physical) to either the ‘mother’ or the ‘child’.
Detection of congenital abnormalities in the foetus is also grounds for getting ‘permission’. Another provision covers married women “for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.” There seems to be no mention of unmarried women at all.
Unmarried women usually have to face judgement and unwanted remarks from healthcare providers when they seek access to abortions. A twisted form of morality is brought into the picture by gynaecologists who either outright refuse to treat single women, or either ask for consent from other family members, which, according to the MTP, is explicitly not required. The doctor-patient relationship should be a safe space, especially when the patient is in an especially vulnerable position.
As one person recounts in this VICE interview, she had to visit a shady clinic which gave her two tablets and resulted in a very painful abortion as opposed to the methods preferred by certified doctors. This was only one account out of the 11·5 million women who get their pregnancies terminated outside of health facilities according to a 2015 study. This is 73% of all abortions occurring in India. Furthermore, it’s estimated that 13 women die every day due to unsafe abortions, the third leading cause of maternal deaths.
Another contributing factor to the stigma around abortion, I would say, is the Pre-Conception & Pre-Natal Diagnostic Techniques (PC-PNDT) Act, 1994. This act prevents sex-selective abortion and in isolation, is an effective tool to combat sex-selective foeticide. The public campaign and the conversation around this act, however, has led to many misgivings about the legality of abortion in India, with research showing that around 80% of women believe that abortion is illegal across the board. Many doctors themselves gravely lack knowledge on the jurisdictions of both of these laws and what the provisions laid down specify.
Notwithstanding the qualified nature of the right to abort, there are plenty of problems with the once progressive law. The 20-week limit impacts especially underage victims of age with multiple accounts of pre-teens having to give birth because of the punishingly slow judiciary and unfair verdicts.
This account by the Center for Reproductive Rights about a 10-year-old being forced to give birth is just one in a string of recent incidents. A 14-year-old was forced to marry her rapist to support the child born out of rape. Most underage survivors of rape aren’t noticed as being pregnant until they’re very close to the 20-week threshold. The judicial board reviewing each case doesn’t help either, sometimes resulting in the crossing of the 20-week limit by the time the case is reviewed.
There is little to no conversation around how the MTP Act affects transgender people. The enactment of various Heartbeat bills in the United States has spurred debate around the right of transgender people to abortions. In the status quo, the movement around abortions wholly centres around cis-women and that needs to change, fast.
Considering that the number of Transgender people engaged in sex work in India is 90%, one can only imagine the double discrimination that they must face while seeking abortions from unwanted pregnancies. A debilitating combination of societal shunning, discrimination, and limited access to contraceptives would result in a large swath of the population seeking illegal abortions. Unfortunately, there isn’t any data or literature available on this particular issue, nor obviously, statistics on the abortions accessed by this demographic.
It’s clear that the MTP needs to have a major overhaul, and soon. This law fails the very group it aims to protect, women. It needs to make the ‘choice to abort’ an inviolable one and give women the freedom over their person, as is guaranteed under the Constitution. The State should have no say over what women do with their bodies, period.
Note: The author is part of the current batch of the Writer’s Training Program.