India's abortion laws fail to consider public health challenges, push women towards unsafe medical practitioners
India has a broadly liberal law that allows abortion services to save lives of women, preserve physical and mental health. Yet, the recent Guttmacher study (2017) shows that around 56 percent of abortions in India are conducted illegally.
The fight for equal rights for women and the continued struggle for the right to control our bodies is not new. Yet, 2018 has been a year when we witnessed the power and role of women in the liberalisation of abortion laws in Ireland and the spontaneous movement to amend abortion laws in Argentina.
The debate around abortion and recognition of a woman's right to make decisions about her own body, ironically, continues to be a contested subject. Unlike other countries in South Asia, India was one of the earliest nations to liberalise abortion by passing the Medical Termination of Pregnancy (MTP) Act, 1971. Preceded by Nepal, which allows access to abortion without any conditions, India has a broadly liberal law that allows abortion services to save lives of women, preserve physical and mental health, and safeguard their socio-economic rights.
Yet, the recent Guttmacher study (2017) shows that around 56 percent of abortions in India are conducted illegally. A complex procedural and legal process around the implementation of the MTP Act is one of the major correlating factors between a liberal law and rampant unsafe abortions in the country. An otherwise well-meaning Act fails to take into account the existing challenges of our public health systems and redressal mechanisms.
For abortion within the first trimester (up to 12 weeks of conception), an approval from single medical specialist, and from two medical specialists in the case of a pregnancy beyond 12 weeks is needed. However, if the duration of pregnancy has crossed five months, the approval of at least two medical specialists is mandatory.
In case the duration has exceeded 5 months, a termination is allowed to be approved on any of the following grounds under Section 3 of the MTP Act: progeny conceived from an act of sexual harassment, the foetus is suffering from a disability, or the mother's life is at risk.
The MTP Act also allows induced miscarriage of pregnancies to be carried out in cases of children under the age of 18 years, after consent from their parent(s) or legally approved guardian(s). Similarly, in cases of persons of unsound mind, consent of parent(s) or legally-approved guardian(s) is needed for induced miscarriage. Owing to the systemic barriers, around 25 percent of the abortions in India take place in the second trimester.
With the evolution of the rights framework in most developed countries, the focus of abortion services has shifted to a woman's right to decide and exert control over her body, whereas the MTP Act still primarily caters to maternal mortality issues of married women. However, efforts have been made to address the inadequacies of the existing law, especially by decentralising the regulation of abortion facilities from the state to district-level committees. The amendments, however, just touched the surface and have failed to become an enabling factor in bringing down the number of unsafe abortions.
The MTP Act, also reflects the prevalent siloed approach within government as well as NGO lobbies. As a result of well-meaning actions and advocacy groups, the Pre-Conception and Prenatal Diagnostic Techniques Act (PCPNDT, 1994) and Protection of Children from Sexual Offences (POCSO Act, 2012) came into being to prevent sex-selective abortions, and safeguard young children from sexual abuse and exploitation respectively. However, they are in direct conflict with the MTP Act. The misuse of the provisions under PCPNDT Act allows illegitimate harassment of medical professionals providing abortion services under MTP Act. As a result, it is dissuading a large number of authorised MTP centers and medical practitioners from providing services.
Similarly, the POCSO Act, 2012 mandates reporting of all abortion cases of girls under the age of 18 years. In several cases of consensual relationships, to protect identities and in some cases, to safeguard the boy, families or the girls themselves are not inclined to report the cases to the police, an otherwise mandatory formality to avail abortion services. The dilemma over breaching the client's will or the system creates a regular conflict for service providers, making them liable for offence punishable with rigorous imprisonment. These provisions not only increase the vulnerability of service providers but also push women, especially minors, towards quacks and other unregistered, unsafe practitioners.
The liberalisation of the MTP Act could hugely contribute in eliminating unsafe abortions from the country, but it is not a complete solution in itself. It is important to address the need for sexual and reproductive health services to ensure that there are no unintended pregnancies in the first place. Initiatives such as the RMNCH+A (Reproductive, Maternal, Newborn, Child, and Adolescent Health strategic approach) clearly articulate and emphasise focus on the needs of the young. But lack of publicity around these services and low levels of awareness could not bring the desired impact.
In India, an abridged version of comprehensive sexuality education is being provided in the form of Adolescent Education Programme (AEP). The content is far from the UNESCO-recognized Comprehensive Sexuality Education curriculum. The persistent value system that inflicts stigma and discrimination by health care providers is another issue that needs to be duly recognised and addressed through targeted behavior-change programmes and trainings of the service providers.
It is high time that the Draft MTP (Amendment) Bill 2014, is brought back to life to facilitate better implementation and increase access for women with a consensus on shifting of responsibilities, allowing second trimester abortions, and other essential revisions as required to address the conflict between the existing law which prevents a woman from taking the decision for her body.
The author is senior technical advisor, advocacy and accountability, International Planned Parenthood Federation – South Asia Regional Office.
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