The Abortion Question and why confusion reigns

The Supreme Court on July 21 allowed an unmarried woman to terminate her 24-week pregnancy, after the Delhi High Court had refused her permission.

Both the rulings have caused a furore and revived the debate on abortion rights in India. Uncannily, this is playing out here hot on the heels of a decision by the US Supreme Court to overturn a storied and longstanding judgment (Roe vs Wade, 1973) that made abortion legal in that country. Must women seek ‘permission’ from courts before terminating pregnancies? Does the state have a right to place restrictions on women’s rights to their own bodies? Must the right to abort be conditional and need the sanction of a medical board? These are some of the questions being asked.

The Delhi High Court had gratuitously directed that the woman be kept in a safe place till she delivered the child. It had also directed that the child be put up for adoption. Apparently, the fact that it was a 24-week pregnancy and that the woman was single had weighed with the High Court.

The Supreme Court ruled that the High Court had laid undue emphasis on the marital status of the woman, especially since the 2021 amendment to the MTP (Medical Termination of Pregnancy) Act had inserted the word ‘partner’ along with ‘husband’ in the law. The law thus recognised women’s right to not just consensual sex and live-in relationships but also to their right over their own bodies.

“The benefits under the (Medical Termination of Pregnancy) Act cannot be denied to her only on the basis of her being unmarried,” the Supreme Court ruled on July 21 in an interim order. The bench of Justices D.Y. Chandrachud, Surya Kant and A.S. Bopanna ruled that the Delhi High Court had adopted an “unduly restrictive” view of the Act when they denied the woman permission to terminate her pregnancy,” in her initial plea filed before the high court.

She had pleaded that while she was in a consensual relationship and discovered that she was pregnant, her partner had deserted her and refused to take any responsibility for the child. The woman, a graduate, who didn’t have a source of income, had pleaded that she be allowed to abort the foetus.

While welcoming the Supreme Court’s ruling in the case, Adsa Fatima of Sama Resource Group for Women and Health, stressed on the need to take a fresh look at the MTP Act. While the law currently looks at the physical risks to the mother and the foetus, it completely overlooks the mental trauma women undergo, she said. The decision to terminate a pregnancy is never easy and seldom taken lightly by women, activists point out.

In India, the viability of the foetus is not discussed much. In medical parlance, this refers to a stage of development when the foetus becomes ‘viable’ or capable of surviving outside the mother’s womb.

“It is a scientific fact that if a foetus is born after 28 weeks, it is likely to survive on its own without too much technical support. Viability is a technology conversation because if you have an advanced ICU, you can even save a 20-week foetus. So, the discussion cannot be about the foetus at all but only about the woman who ends up having to carry the pregnancy because the person who has to go through labour is at risk,” says gynaecologist Dr Suchitra Dalvie, who is also the coordinator of the Asia Safe Abortion Partnership.

In UK and Spain, where they do allow termination beyond 20-24 weeks, the foetus is injected with a certain medication that stops the heart. “You cannot assign personhood to someone that isn’t yet born, and also have a law that states that if a person is brain dead, you can take away their organs. How can both these co-exist? If you are saying that the functioning of the brain is what makes you a person, then what brain is the foetus using?” argues Dalvie.

An editorial in The Lancet, while commenting on the US Supreme Court’s latest decision to make abortions illegal again, overturning Roe, 1973, stated: “Indeed, if the Court denies women the right to safe abortion, it will be a judicial endorsement of state control over women—a breath-taking setback for the health and rights of women, one that will have global reverberations.”

Despite improvements in the MTP Act, illegal abortions in India are believed to be abnormally high. Abortions in India are over 21 times higher than the government officially admits, according to a study published in the Lancet Health Global medical journal. The journal estimated the number of abortions in India at 15.6 million in 2015; official data put that number at 700,000.

Every year, 47 per 1,000 Indian women undergo an abortion, the study claimed. This is the highest in the world; for comparison, the rate in the US is 12 per 1,000 women of childbearing age and in China, under its forced abortion policy, 28 per 1,000.

“Most abortions (in India) are happening without prescriptions and outside of facilities via chemists and informal vendors,” the study’s authors wrote, adding, “Indian women are taking the procedure into their own hands.”

Medical professionals and gender activists believe there is a need to further finetune the MTP Act of 2021, first enacted in 1971. Women object to the word ‘miscarriage’, for example, because it puts the onus on them and disregards medical research that relates so-called ‘miscarriage’ to chromosomal characteristics.

The MTP Act came about because too many women were dying of septic abortion and then the maternal mortality rate in India was extremely high. The Shantilal Shah Committee, which was set up in the late 1960s, travelled across India for three years to understand the situation. They reported that the maternal mortality rate was so high because women were finding unsafe ways to abort unwanted pregnancies. The MTPA was enacted in 1971 as an exception to the outdated provisions of a colonial-era Indian Penal Code, which criminalised voluntary miscarriage or abortion.

“We should be looking at decriminalising abortion, [delinking it] from the Indian Penal Code, to allow the doctor and the patient to decide, as in an open-heart surgery, which is more dangerous or complicated,” says Dalvie.

The 2021 amendments extended its scope and factored in genetic, therapeutic, humanitarian and social considerations. While the 2021 Act introduced several welcome features and is more progressive, the law is still ambiguous on the right of women, whether single, divorced or widowed, to opt for termination of pregnancy. The deep-rooted prejudice against unmarried, single or widowed women seeking abortions also needs to be addressed.

“The important thing to understand in the amendments is that there is no [cutoff point] for when you can do an abortion to save the woman’s life and if the foetus has abnormalities. This means the real concern is not ‘viability’ [of the foetus],” underscores Dalvie.

In 2017 Justice J. Chelameswar had famously ruled that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas that fall in the realm of privacy”. Justice R.F. Nariman, who was also on the bench, included the right to abort a foetus on the list of “a large number of privacy interests”.

Under the MTP Act, a woman is allowed to get an abortion until the 20th week of her pregnancy based on the medical opinion of a single doctor. Beyond 20 weeks, she has to prove that the pregnancy threatens her life. After it was amended in October 2021, abortion was extended to 24 weeks for seven categories of women, including minors and sexual assault survivors. It also added women whose marital status (divorce or widowhood) had changed during the pregnancy.

Critics, however, question the disproportionate authority enjoyed by outside agencies over the body of women. “A woman’s autonomy is undermined by the law. While the medical board should be playing the role of clinicians and healthcare providers, women often encounter opinions based on subjective moralities and biases,” says Fatima. Concurs Mumbai-based lawyer Anubha Rastogi, who works for reproductive rights and justice.

“Abortion is still not a right in India; it is only legal under certain conditions,” she says.

In 2016, 21 abortion cases went to the Supreme Court and while hearing the 21st case, the Court said petitioners could approach the high courts for such cases, points out Rastogi.

“After that till August 2020, as many as 600 cases were heard by courts around the country. Suddenly everyone felt that unless they got a court order, they couldn’t ask for an abortion even though that is not what the law states,” says Rastogi, who has been tracking the cases.

Even during the pandemic lockdown, until August 2020, as many as 112 cases of abortion were heard across 14 high courts in the country. But many courts are not upholding the legal right to abortion up to 20 weeks and in some cases up to 24 weeks.

These cases would not have gone to court if there was no MTP Act and abortion was like any other medical procedure. “There is no law on child birth or on heart surgery or brain surgery. It’s a decision between the patient and the medical service provider. If an abortion was also like that, would we need a law?” asks Rastogi.

Women needing an abortion after 24 weeks, in case of a foetal abnormality, have to get the approval of a medical board with five specialists. But Rastogi, who has authored a report on women’s access to safe abortions, says for most women in remote villages access to medical boards is severely restricted. Not every district has enough doctors to constitute boards as mandated by the law.

Not surprisingly, India sees more illegal abortions than legal ones, adds former professor at the Centre of Social Medicine and Community Health, Jawaharlal Nehru University, Dr Mohan Rao.

“Abortions, it is estimated, account for 12 per cent of maternal deaths in the country,” he says.

Technically, points out Rao, abortion facilities are available at community health centres. But 72 per cent of the posts of obstetrician-gynaecologists in CHCs are vacant. “I don’t know if there exists a CHC that has a gynaecologist, an operation theatre, a blood bank and an anaesthetist. As a result, we are forcing people to go into the private healthcare system and they extort money,” added Rao.

The NFHS-5 (National Health Family Survey) revealed that 53 per cent of abortions in India were being performed in the private health sector and only 20 per cent in government or public hospitals. About 27 per cent abortions are done at home by the women themselves. Sixteen per cent of the women who had undergone abortions admitted to post-abortion complications.

Rao also believes that the MTP Act and the POCSO Act, which criminalises adolescence sexuality, are not compatible. Where will pregnant adolescents go as doctors are being advised that they should report the men, juvenile or otherwise, to the criminal justice system? Teenagers are sexually active and the threat of criminal prosecution is driving them to illegal abortion clinics, he points out.

If a teenaged pregnant girl goes to a doctor for an MTP, the doctor is obliged to inform the police, and only after the young man has been jailed can the young woman get an abortion. Wrap your head around that!

(This was first published in National Herald on Sunday)