Abortion Is Legal, Make It Accessible
Up until 1971, abortion was illegal in India under Section 312 of the Indian Penal Code, 1860. ‘Causing miscarriage’ of a woman was a crime punishable with imprisonment up to three years and/or a fine.
In 1960s, 15 countries made abortion legal and this triggered deliberations on a need for a rethink in India too as it was recognized that there were many maternal deaths caused by unsafe abortions.
The Union Government then set up the Shantilal Shah Committee to evaluate whether an abortion law was needed in the country. Ultimately on 10th August 1971, based on the recommendations of the Committee, India enacted the Medical Termination of Pregnancy Act.
So, what did this law do? The MTP Act legalized abortions in the country under certain conditions. Broadly, these conditions were about when and why abortions can be done; and about who can provide them and where. The law specifies abortion is legal if a pregnancy is terminated within 20 weeks of gestation by a medical practitioner for one of these reasons – risk to life or physical or mental health of the pregnant woman; pregnancy caused by rape or due to contraceptive failure (in case of married women); or if there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. The MTP Act further specifies that it is only gynaecologists or MBBS doctors (with certified training) who can perform abortions either in government hospitals or in private hospitals approved for his purpose.
So almost five decades ago, much ahead of its time, the Indian abortion law sought to provide universal access to abortions and protected women who sought these services and medical practitioners who provided them. It however, did not make abortion a woman’s right – provisions of the MTP Act require the opinion of one medical practitioner for up to 12 weeks of pregnancy and of two medical practitioners for 12-20 weeks of pregnancy to certify the reason for termination of pregnancy. The power to a woman (who is not a minor or mentally-ill) was given in the form of consent – the law requires only the consent of a woman for termination of her pregnancy.
Against the backdrop of a liberal legislation women in India still do not have access to safe, sensitive and non-judgemental abortion services. What is it that is needed to ensure that the legislation continues to be relevant for the current context and is translated into safe and respectful services for women?
To start with, the current MTP Act itself needs an overhaul to keep pace with social and technological advancements. It has some glaring drawbacks including not placing the choice in the hands of the woman herself. Further, it is restricting in terms of who can provide an abortion allowing only allopathic doctors to provide services. The ongoing process of amending the MTP Act was initiated in 2008. In more than a decade, the context has further evolved and there is a need to ensure that the amendments are passed keeping the next many years in mind just as they were back in 1971.
On the policy front, the Government of India has kept safe abortions on the health agenda especially since 2000 and has ensured that state governments do so to. There have been some pathbreaking gains in the form of the technical and operational guidelines with a view to standardizing training and service delivery. The need of the hour is now to ensure that these are implemented across the country – training systems need to be established, service provision needs to be monitored and quality of services and behaviour with women seeking abortions needs to be improved. Legal barriers for doctors performing abortions in government and especially private hospitals need to be resolved – for example with reference to conflation with other laws like the PCPNDT Act and the POCSO Act. Doctors in turn need to be sensitized to the needs to every woman who approaches them for an abortion, so they provide respectful and non-judgmental services.
The bulk of efforts needs to be directed to the communities. Even though abortion is a part of many women’s life, it continues to be highly stigmatized leading women to resort to unsafe and illegal options. Research suggests that while for a spontaneous abortion or miscarriage, most women would approach the formal health system; in case of terminating an unwanted pregnancy, almost all women would try various routes like going to chemists, dais, other informal practitioners before approaching a doctor. This behaviour can easily be understood and attributed to the huge stigma that is attached to an unwanted pregnancy – premarital sex is a taboo and therefore an unmarried girl/woman with an unwanted pregnancy will need to go to all extremes to terminate it with complete secrecy. In India, marriage is directly related to reproduction and so the concept of an unwanted pregnancy within marriage carries its own taboo, making it no less difficult for a married woman to disclose and abort it.
Today, as we look back at the gains of 49 years since the passage of the MTP Act, we need to take a step back and look around. We need to study and understand current knowledge and practices, we need to absorb the needs of women and girls, and more importantly we need to empower them to express themselves, and involve them in co-creating solutions that will best address their needs.
The Indian abortion law laid a strong foundation for abortion access; and it would not be wise to miss the progress we have made so far. However, we need to realize that despite the gains, gaps remain in all realms and today is a good day to renew our pledge of making safe abortion accessible for every woman who wants it.
The author is the Senior Director of Strategy and Development at Ipas Development Foundation, an Indian NGO that is dedicated to preventing and managing unwanted pregnancies.
