Abortion laws: Why should India revise the Medical Termination of Pregnancy Act?

17-year-old Asha (name changed) is a mother of four children and a victim of domestic violence. Asha hails from Tufanganj in the Cooch Behar district of West Bengal. She was married at eleven to her 20-year-old cousin Praveen (name changed), a truck driver. After one such event of physical abuse recently, Asha’s mother Rekha (name changed) - who works as a housemaid in Delhi - rescued her bruised daughter from Bengal and brought her to the national capital. Soon after reaching Delhi, Rekha was shocked to find that her daughter was 21 weeks pregnant. This would be Asha’s fifth child in an abusive marriage. But this time, Asha was resolute and decided to abort the child.

Jasmine George, Founder of Hidden Pockets speaks to The Probe's Syeda Hasan

Over the course of one week, the mother-daughter duo went to several abortion centres and hospitals in Delhi. Rekha narrates her ordeal, “We walked from pillar to post to get the pregnancy termination done. My daughter and I were humiliated and ridiculed, even by big hospitals. Because of our poor background, we were told that it is expensive to get an abortion done but easier to raise the child. They asked my daughter what she was thinking when she had sex with her husband. I was asked why I got my daughter married off if she didn’t want a child. We were asked to get her abusive husband’s permission for the abortion, and this went on for several days”.

Finally, a local clinic in Delhi facilitated the abortion on May 27 this year. They also helped Asha file a case related to domestic abuse against her husband.

After the US Supreme Court overturned the landmark 1973 Roe vs Wade judgement that made abortion a constitutional right, many Indians have been ostentatiously bragging about the superiority and preeminence of Indian laws related to medical termination of pregnancy. But Asha’s story is a case in point, showing how Indian laws have failed our women. The ignorance of the existing laws among the patient-doctor community and the cultural and religious stigma attached to abortion makes it difficult for women to exercise their rights over their bodies.

“The Roe vs Wade judgement in the US is a historical judgement. Until 1973, we didn’t have a legal philosophy around whether women had a right over their own bodies. For the first time, through this judgement, the right to privacy was accorded to women, and it gave them exclusive rights over their bodies. After fifty years, when such a historical judgement that inspired a generation of advocates gets overturned in the US, its ripple effects will be felt in several other parts of the world. India has nothing to cheer about. We need to go a long way before we can say our laws are progressive,” says Jasmine George, the founder of Hidden Pockets.

Jasmine is a sexual and reproductive health advocate based out of Bangalore. She says that she was a victim of such humiliation, and this prompted her to start her social enterprise, Hidden Pockets, which connects young people with trusted sexual and reproductive health professionals. Her organisation's mission is to create an India free of sexual shame.

Abortion related protests in the US | Photo courtesy: @TimRyan | Twitter

“I am a lawyer. I thought I was educated enough and I could protect myself. But when I was in Delhi, I went to a gynaecologist, and she just plainly humiliated me. It broke my self-confidence and taught me that no matter how educated you are and how much you are aware of the laws of the land, a doctor can humiliate you. I wondered if a doctor could misbehave with me in the national capital, what would the condition of women be in places like Ranchi or, for that matter, in rural India? That’s why I started Hidden Pockets.”

Jasmine, almost every week, comes across women who face ridicule and abuse in clinics and hospitals. “We still live in a society where women are abused and shouted at by doctors. Doctors don’t believe women when they say that they are unwell. If a woman walks into the clinic at a later stage in her pregnancy, doctors misbehave with them and say where were you for the last twenty weeks. But they don’t genuinely understand that, at most times, women don’t get to know they are pregnant. Sex workers and people below 18 years face more harassment than others.”

While many Indians continue to indulge in chest-thumping following the Roe vs Wade judgement, a look at the Indian laws shows that in our country, as far as abortions are concerned, the ball is in the doctor’s court and often, women do not have the final say when it comes to abortions.

Before 1971, abortion was criminalised in India under Section 312 of the Indian Penal Code (IPC), which called it intentionally “causing miscarriage”. The only exception was in cases where abortion was carried out to save the woman’s life. The Medical Termination of Pregnancy Act was enacted to offer some relief to women and medical practitioners from the IPC rules that made abortion a crime.

Image of a pregnant Indian woman | Pic courtesy: UNICEF

The MTP Act of 1971 provides for the termination of certain pregnancies by registered Medical Practitioners. According to this Act, a pregnancy can be terminated by a registered medical practitioner if the length of the pregnancy does not exceed twelve weeks. If the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, then consent from two registered medical practitioners is required.

As per this law, the termination of pregnancy can take place if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or would gravely cause injury to her physical or mental health. The pregnancy can also be terminated if there is a substantial risk that if the child were born, it would suffer from physical or mental abnormalities.

The Act allows women to go for medical termination of pregnancy if the pregnancy was caused by rape or due to the failure of a contraceptive device used by “any married woman or her husband” to limit the number of children.

Section (4) (a) of the Act states that: “No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian”.

The Act provides that the termination of pregnancy can only be conducted in a hospital established or maintained by Government, or in a place that has an approval of the government to conduct such acts.

An amendment in 2021 to this Act raised the ceiling for abortions from 20 weeks to 24 weeks but only for special categories of pregnant women like survivors of rape or incest, with the approval of two registered doctors. While the earlier law stated that pregnancies up to 12 weeks required one doctor’s permission and pregnancies between 12 and 20 weeks required the approval of two doctors, the amended law needed the nod of one doctor for all pregnancies up to 20 weeks. While the earlier law stated that only married women could terminate unwanted pregnancies caused by contraceptive failures, the amended law allowed all women, regardless of their marital status, to terminate unwanted pregnancies.

Anubha Rastogi, a lawyer and feminist, has been practising in Mumbai for nearly two decades. She has been actively involved in issues related to the sexual reproductive health of women and justice matters. According to her, the laws in India do not protect the rights of women but it allows the doctors to steer the course of a woman’s life.

“Between IPC sections 312 and 316, it makes causing miscarriage of a pregnant woman an offence, and it includes causing miscarriage of a woman where the woman herself is also consenting. In this case, it makes the woman also an offender. The only exception is when abortion is necessary to save the pregnant woman’s life. So, it is an offence if you are not saving the woman’s life and causing a miscarriage. It was that narrow earlier, and the MTP Act in 1971 made it wider and gave certain situations in which abortions can be done but based on medical opinion, which means that even if I am falling under those categories and if the doctor wants to refuse, he can refuse an abortion. Let me emphasise the fact that this law has been amended twice, but unfortunately, it still does not use a rights-based language.”

In India, women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier, the law specified that only married women could go for an abortion. “One of the reasons for seeking an abortion is the failure of contraceptives. Before 2021, that particular reason was limited to a married woman or her husband. But after 2021, the language has changed. It says a woman or her partner. So, therefore, it doesn’t discriminate against her based on her marital status. An unmarried woman within 20 weeks of her gestational age of the foetus can seek termination of pregnancy on the ground that there was a failure of contraceptive and therefore this was an unplanned or unwanted pregnancy,” asserts Anubha.

In India, medical termination of pregnancies is not just a legal matter. It is a cultural issue, and social stereotypes and the stigma attached to abortion make it difficult for women to access medical services without the fear of retribution.

“Though India provides the right to abortion, there are certain judicial and cultural restraints due to which women do not enjoy the liberty of abortion. The law is not clear on how women can have an abortion which is why they prefer unsafe methods of abortion rather than reaching out to a health specialist for a safer process. The problem arises when you don’t trust the woman; therefore, you humiliate her and ask for a guardian before carrying out the process,” says Dr Nozer Sheriar, a Gynaecologist and Obstetrician from Mumbai.

Kajal Jain, a Program Coordinator with Mahila Sarvangeen Utkarsh Mandal, an NGO in Pune, says the cultural portrayal of abortion as a sin and the dearth of qualified abortion providers makes getting an abortion a herculean task for women in India. “In states like Assam, women have to travel considerable distances to receive abortion facilities and go through several tests with costly fees before getting the treatment. In states like Rajasthan, abortion pills are available but most pharmacies do not prefer keeping these medications as there is tons of paperwork and multiple consents needed to purchase them.”

Kajal narrated an incident about a sex worker in Rajasthan who got her abortion done in the hospital washroom. “The sex worker went to a well-known doctor for abortion in Rajasthan, and the doctor performed the abortion in the washroom of the hospital. The victim felt helpless and embarrassed and decided to never revisit the hospital. Sex workers go through abuse and humiliation when seeking an abortion.”

The Medical Termination of Pregnancy (Amendment) Act of 2021 only refers to pregnant women. It fails to address the needs of transgender persons or non-binary people who may need an abortion. The fact that women still do not have the final say regarding their abortion, but the doctors get the last word, makes these laws more obsolete.

“Even though India has legal abortions, nobody knows about this. We have worked in Kerala, Bihar, Karnataka and other states. People think it is illegal. I am not talking about just people, but we have found that even doctors think it is illegal in many places. So, it is not just about laws. These laws need to be implemented. At the same time, mass awareness needs to be created amongst people on our existing legal framework. If a woman says that she doesn’t want a pregnancy, if she feels that the pregnancy is unwanted, she must be given the right to terminate it,” says Jasmine George.

Section 19 of the Protection of Children from Child Sexual Offences (POCSO) Act of 2012 requires that any person who is aware that a minor has engaged in sexual activity must report it to the Special Juvenile Police Unit or the Local Police. This must be done even if it was a consensual act, as the law has pegged the age of consent at 18.

“When POCSO views a sexual activity below 18 years as an offence, then a minor pregnant woman who goes to a doctor is seen under the law as a survivor of violence. This is the case, even if she has done consensual sex as her consent is of no consequence as per law because she is a minor. POCSO also says that the survivor needs to be given emergency medical services, and if you don’t provide her with that, it is also considered an offence. My advice to doctors is that either you will get prosecuted for not reporting about the pregnancy of the minor, or you will get prosecuted for not providing medical service to her. So, the best solution here is, you provide a service, and then you report it to the police as the law mandates it,” says Anubha.

Ultrasound of a pregnant woman in a hospital | Photo courtesy: Special arrangement

In February 2017, the Supreme Court refused to allow a woman to abort a 26-week foetus that would have been born with Down Syndrome. Stating that “we have a life in our hands”, the apex court stated that the woman could continue with her pregnancy as the medical board constituted to examine the matter found that there was no physical risk to the mother if she continued carrying the child. “Everybody knows that children with down syndrome are undoubtedly less intelligent, but they are fine people,” observed the judges.

According to a study conducted by the Guttmacher institute, which The Lancet published, an estimated 1.56 crore abortions took place in India in 2015. In the same year, the media reported that the official government figures for abortions were only around seven lakhs. Several studies have shown that unsafe abortions are one of India’s most common causes of maternal mortality.

According to the State of World Population (SoWP) 2022 report of the United Nations Population Fund (UNFPA), Rajasthan, Uttar Pradesh, Madhya Pradesh, Chattisgarh, Bihar, Odisha and Assam are the seven Indian states with high maternal mortality. The report states: “Despite the legislative protection of the historical Medical Termination of Pregnancy Act of 1971, unsafe abortions remain the third leading cause of maternal mortality in India, and close to 8 women die from causes related to unsafe abortion each day. In India, 2007-2011, 67 per cent of abortions were classified as unsafe, varying widely across the states (ranging 45.1 per cent to 78.3 per cent).”

While it is true that when compared to many other countries, India may still have better abortion laws, but equally noteworthy is the fact that India’s abortion laws have been widely criticised for not being inclusive, rights-based and for not giving women the final word when it comes to decisions related to her body.

Until abortion is considered a matter of a woman’s rights and the woman’s consent is given far more precedence than anything else, victims like Asha will continue to face ridicule and humiliation at the hands of medical practitioners. In India, abortion is not just a legal issue; it is a problem that has social and cultural underpinnings. Apart from amending existing obsolete laws, the government must invest in social and cultural awareness programs to remove the stigma associated with pregnancy terminations so that abortion is not considered a sin and the women who opt for them are not seen as sinners by our society.