In this guest post, Saurabh Kumar critiques Indian Abortion Laws

Introduction

This article is an attempt at understanding India’s abortion laws. It aims to critique these laws with the help of the following research questions-

• How did abortion laws evolve across countries over a period of time?
• What is the current level of awareness about abortion laws and methods?
• What are the current statistics with regards to approval for abortions legally and mortality rate associated with the current medical practices related to abortions?
• What are the salient features of the Medical Termination of Pregnancy Act, 1971 (MTP)? How is it related to the Prevention of Child Sexual Offences Act, 2012 (POCSO) and the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 (PC-PNDT)?
• What are the shortcomings that India’s abortion laws suffer from? How does it affect people and what can be done to rectify these follies?

History of the Pro-Choice Movement

“Pro-choice” movement is the phrase used to describe a woman’s bodily right to continue with her pregnancy or use medical procedures to go bring it to an end. Such medical procedures should be legally approved and medically safe. Abortions had been prevalent way back in 450 BC, as suggested by the works of Hypocrites. In 4^th century AD, abortion was allowed only till the first three months of pregnancy. In the middle ages and until the 1900s, abortions were not allowed legally in many countries. For instance, England in 1869 came up with a legislation called “Offences Against the Persons Act”, that outlawed abortions for any reason.

The first country to allow termination of pregnancies on a slew of legal grounds was the Union of Soviet Socialist Republics (USSR) in 1920. Nazi Germany, practised selective abortions, as seen in the 1933 legislation called “Law for the Prevention of Progeny with Hereditary Diseases”, that was used to terminate differently abled children. They were closely followed by Japan in 1948 and several European countries in the 1950s. Interestingly, Britain reversed its stand in 1967 and started allowing abortions. USA has a fractured history of abortion rights. In the 1950s, the medical community in America started discussing “planned parenthood”-a subtle synonym to describe abortions. This laid the ground for the American legal institute to plead for abortions to be legally allowed in cases other than rape in 1959.  In the 1960s, Mississippi, California and Colorado became the first states to allow abortions. However, by the 1970s, only 16 of the 50 states supported the abortion rights movement. Later due to the US Supreme Court’s decision in Roe V Wade, in 1973, allowed abortions nationally. This, however, caused a political and legal friction between “pro-life” groups and abortion lobby in America[2].

Current Statistics Related to Abortions

Roughly 60 per cent of the world’s current population resides in countries, where “induced abortions”, i.e. abortion with intent is allowed on a relatively liberal scale. But, about 1/4^th of the world’s population reside in places where “induced abortions” are completely banned or allowed sparingly when a lady’s life is at risk. Sometimes, abortions are not permitted by that country’s legislation, but doctors cite medical norms and ethics to sparingly perform acts of “induced abortions”[3].

According to medical data collected worldwide, 25 per cent of all pregnancies have resulted in abortions between the years 2010-2014. However, due to medical inadequacies and legal restrictions, only half of them are performed in safe medical conditions. As a direct consequence, roughly half a lakh women lose their lives and up to 5 million women are disabled for life. According to available data, of the 56 million odd abortions in more than 180 countries, between 2010-2014, only 55 per cent were conducted in a safe manner. The rest of them took place in unsafe conditions, roughly 3/4^th of which could or did result in the death of the aborting mother[4].

The World Health Organisation (WHO) has repeatedly sought legal approval of abortions as a regulatory framework ensures the greater bodily safety of women. For example, in about 60 nations where abortion laws have been liberal, over 90 per cent of the abortions are carried out in completely safe conditions. This is in sharp contrast with about 60 developing countries with relatively stringent abortion laws, where only half of all abortions were carried out in safe conditions, while in countries where abortions are mostly disallowed, only 1/4^th of all abortions are safely carried out. In India, the mortality rate amongst aborting mothers is relatively high. About 3,500 women die annually due to botched up abortion procedures, with every 2^nd abortion procedure being carried out in very unsafe conditions. These deaths can be prevented with a better regulatory framework[5].

Legal Framework for Abortions in India

Owing to its colonial legacy and Great Britain’s act of outlawing abortions between 1869 to 1967, Section 312 of the Indian Penal Code (IPC) disallowed as an induced act of miscarriage. However, post-independence things changed significantly. In 1952, India introduced family planning programme to check its expanding population. In 1964, the Central Planning Commission formed a committee- under the leadership of the Health Minister of the state of Maharashtra, Shri Shantilal Shah, to look into the need to bring in changes to the IPC and introduce other needed legislation to deal with termination of pregnancies purposefully. The committee submitted its report in 1966, which called for deletion of Section 312 of IPC and the need to bring in a special law to deal with termination of pregnancies. They cited the changes in Great Britain’s abortion laws to support the need for India’s abortion laws to be changed. As a result, an exclusive abortion-related legislation- the Medical Termination of Pregnancy (MTP) Act, 1971, came into being[6].

MTP Act is in force in all parts of the country except Jammu and Kashmir. It follows stringent regulations to allow abortions. For example, only registered medical practitioners, approved under section 2 (h) of Indian Medical Council Act, 1956, can carry out the termination of pregnancies via induced miscarriage. It only allows gynaecologists or obstetric specialists to carry out acts of termination of pregnancies. MTP Act allows pregnancies to be brought to an end in the first three months with the approval of only a single registered medical specialist. But, if the duration of pregnancy has crossed five months, the approval of at least 2 medical specialists is needed. The termination in case the duration of 5 months has passed, is approved on the following grounds under section 3 of the MTP Act – progeny conceived from an act of sexual harassment, the child suffering from any disability detected before his/her birth, mother’s life is at risk etc. MTP Act also allows induced miscarriage of pregnancies to be carried out in cases of children aged less than 18 years with the consent of 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[7].

MTP Act has been complemented with several rules and regulations over the years. For instance, the Union government in 2003 came up with the “MTP Regulations”, which is to be followed in all centrally administered territories or Union Territories (UTs). According to the aforementioned regulations, all the Registered Medical Practitioner (RMP), must maintain abortion records and submit them to the Chief Medical Officer (CMO). The union government asked states to follow suit and come up with similar laws to regulate abortion procedures. The union government also came up with the Comprehensive Abortion Care (CAC) Training and Service Delivery Guidelines, 2010, which has been amended in 2014. It aims to train medical practitioners and staff to clamp down upon the deaths of mothers from unprescribed induced miscarriage practices. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)  (PCPNDT)Act, 1994, has also been used to supplement abortion laws and regulations to ensure that girl child deaths through illegal induced miscarriages are looked into and avoided in the future[8].

Public Knowledge about Abortion Measures

Indian Institute of Population Studies (IIPS), an NGO dealing with demographic studies, conducted a survey in 7 south Indian and an equal number of north Indian states to find out about the level of awareness amongst youngster aged 18-24 years regarding abortion procedures and laws in India[9].

They found that states in southern India were more aware when it came to knowledge about medicinal means to carry out induced miscarriage, with about 1/3^rd of men and half of the women surveyed were aware vis-à-vis the national average of roughly 25 per cent men and 30 per cent women. It was also found that over 75 per cent of men and women surveyed knew that sex determination and resultant abortion is outlawed. This seems to suggest that the Indian government’s attempt to counter sex determination tests and resultant induced miscarriages have succeeded to a certain degree. Roughly 2/3^rd of men surveyed and 3/4^th of women surveyed knew about the 20-week norm to abort a child legally in India. However, less than 40 per cent of men and about 45 per cent of women surveyed knew about unmarried women being legally allowed to opt for induced miscarriage. Only 1/4^th of men and women surveyed knew about married women being legally allowed to opt for induced miscarriage. It was also found that married youths and those in urban areas were more aware of abortion rights and methods than their unmarried and rural counterparts. Similarly, youth in South India and Maharashtra were more aware of their sexual rights, abortion rights and methods as well as Sexually Transmitted Diseases (STDs) and ways and means to prevent them[10].

Problems with India’s Abortion Laws and Suggested Remedial Measures

Indian legislation dealing with abortions, while novel in its intentions and purpose, suffers from some procedural and legal hindrances that make its application problematic and creates unpleasant consequences as described below-

• Over-priced medicines – There are two ways of aborting a baby- either via surgical tools or with the help of medicines. These medicines are utilized either orally or through the vagina for terminating an unborn foetus. In many cases, due to cost and other health-related concerns, women go for oral medicines disbursed by specialist doctors. These doctors often sell these birth control medicines at exorbitant prices, taking undue advantage of a woman’s ignorance and helplessness. The MTP Act, in its attempt to ensure birth control, gives wide-ranging powers to doctors, which is routinely misused by doctors to fill in their pockets. Therefore, the need of the hour is to ensure that oral or vaginal pills used for medical termination of pregnancies should be compulsorily included in the national list of essential medicines, which are to be obligatorily sold at government approved affordable prices for a woman’s convenience[11].
• Misuse of PCPNDT Act – The PCPNDT Act outlaws sex-selective acts of termination of pregnancy. This was due to sonography and other modern technology being misused to determine the gender of the unborn child and aborting it prematurely in cases of girl child. Of late, PCPNDT Act has been wrongly used by law enforcement agencies to clamp down on all abortions as they feel that by clamping down on abortions in general, they will be able to save female children who are being regularly terminated at birth. Doctors too are wary of abortions due to the potential of being prosecuted under the PCPNDT Act, which invites harsh punishment for offenders[12]. The “conflict” between PCPNDT and the MTP Act feels manufactured. The PCPNDT outlaws any medical action that is meant to determine the gender of an unborn child. If any individual/s act on such determination of gender of an unborn child and terminate the pregnancy because the child’s gender was female, such an action is to be prosecuted, while the offending individual/s and the doctor and other medical professionals involved are to be punished. MTP Act, on the other hand, allows induced miscarriage of unborn children, be it male or female, on grounds like rape-induced pregnancy, the mother’s life being at risk, the child suffering from any disability etc. The very purpose of the MTP Act is wildly different from the PCPNDT Act. While the formers help to aid genuine cases of abortion, the latter aims to stop sex determination and sex-selective abortion, MTP Act does not allow sex determination of the child. Thus, it is imperative for law enforcement agencies to understand the purpose behind both the laws and apply it accordingly[13].

• The conflict between POCSO and MTP– The MTP Act allows minors to terminate their pregnancies with the consent of their legal guardians. This is meant to ensure anonymity and expedite the process of termination of pregnancy to ensure that health complications do not affect the minor. POCSO Act, on the other hand, makes it legally obligatory for doctors attending to termination of pregnancy of minors to report such cases of minors getting pregnant to law enforcement authorities. In case the doctor does not report this and goes ahead with the abortion process, he/she will also be legally prosecuted. As a result, minors do not prefer going to registered doctors and visit quacks or other medical service providers who may carry out abortion in an unsafe manner. This defeats the whole purpose of MTP Act which seeks to protect the identity of women undergoing induced miscarriage process. The situation in India is even more dire as about half of all brides are minors, who may not get access to best of legal services to terminate teenage pregnancy or may have to risk their life and limb by undergoing an unsafe surgery. Therefore, there is a need to look into this friction between the MTP Act and the POCSO Act and get rid of it as this is putting the lives of a lot of young women at potential risk[14]. India is a party to the Convention on Rights of Child (CRC), a legal instrument created by the United Nations in 1992 to look into the welfare of children. According to the CRC, children should not be allowed to be a part of any sexual activity which is not willful or natural. This was meant to protect children from sexual rackets and sexual predators. But, the CRC did not suggest that sexual autonomy of children should be completely curtailed. It sought to simply protect children from being sexually exploited. This was also cited by Justice Verma Committee in their final report in 2012 on amending India’s criminal justice system to deal with rapes. They cited Article 34 of the CRC to counter POCSO’s provisions outlawing any consensual sexual activity involving minors. Therefore, the POCSO Act needs urgent amendments in order to allow consensual sexual activity among minors with an adequate level of secrecy to terminate teenage pregnancies with the least legal resistance possible[15].

• Lack of adequate doctors– India lacks the sufficient number of registered and trained medical practitioners to take care of its looming abortion requirements. This has resulted in pregnant women going for unsafe abortion procedures, which causes about 4000 deaths annually. AYUSH practitioners, auxiliary nurses can be trained to advice oral and vaginal pills to pregnant ladies opting for abortions. This will help bring down the number of deaths due to unsafe abortion procedures as well as help a lot more women avail proper medical services. As suggested in the 2014 MTP amendment bill, this provision would have been no less than revolutionary. However, due to political and administrative reasons, this bill was not passed[16].
• Clash with disability rights movement– MTP allows abortion up to 20 weeks. It is to be noted that the MTP Act came up in the 1970s. Technology has made huge strides these days. It is not only possible to detect defects in pregnant women late into the pregnancy, but the abortion process too has become much more streamlined and safer, even late into the pregnancy. However, as the MTP Act does not take into account these technological advancements, the application of the law has been scratchy at best. For example, in a 2008 case, when a mother approached Bombay high court to abort her 20 week old foetus, whose heart condition was detected late into the pregnancy, the court while noting the obsolescence of the MTP Act as well as the advancement in technology, decided to turn down their request due to the 20 week period norm. Similarly, in a 2017 judgment, the Calcutta High court did something completely different by allowing a 25-week old pregnancy to be terminated on similar grounds. Thus, the courts too have not been uniform in the application of the law. This shows that both the law and its application need to be looked into with appropriate course correction[17]. However, a major question that crops up is whether the MTP Act clashes with the disability rights movement in India? The 2008 case cited above deals with the conundrum faced by a certain Nikita Mehta. She was able to discover a heart defect in her foetus of 20 weeks, which could not have been detected beforehand. The defect was incurable. A major opposition against allowing large-scale abortions of fetuses with incurable defects is that it hampers the rights of such specially-abled children. Article 21 of the constitution allows everyone the right to life with respect and dignity. However, as cited by many parents, it is difficult in a country like India to take care of specially-abled children due to fiscal constraints and societal pressure. India has never been considered disabled friendly. There is clear lack of fiscal and infrastructural means to take good care of the differently abled. In fact, many scientists and researchers have not been able to discern if a foetus can be considered a living organism? They have not been able to determine if and when a foetus starts developing emotional and cognitive skills like other -humans. Thus, till better state support comes up, abortion of the differently abled fetuses with incurable ailments may be allowed on a case to case basis depending on the level of disability and the parent’s ability to deal with the same[18].

• The legal process is overdrawn and slow– There have been instances in the past, where the judiciary has been found wanting in its response to abortion petitions. For example, in a certain case, a lady suffering from HIV had to deliver a baby as the judiciary was not expedited enough in dealing with her petition. As a result, the 20 week period was lost and induced miscarriage posed risk to both mother and child. The legal system thus needs to put its act together. In cases of abortion petitions, the whole process of hearing should be fast-tracked keeping in mind the 20 week period to have a safe and legally permissible abortion in India. A special bench may also be constituted to fast-track such trials[19].
• Need for major policy change- India’s abortion laws and procedures are archaic. They aim to prevent population explosion and guarantee women’s rights but are filled with loopholes and restrictions. Abortions are not a guaranteed right but can be taken up under selective conditions like a child suffering from any physical or psychological impairment, pregnancy being a result of rape, teenagers becoming pregnant etc. This leads to a lot of undue restrictions on women, which must be done away with. The Act must become facilitating and not restricting[20].
  

  Conclusion

Therefore, in conclusion, while India’s abortion laws are indeed meant to help emancipate its women-folk, its application and substantive elements suffer from some serious follies. There is a need to update MTP Act to bring it in consonance with modern day technology and medical methods. There is also a need to amend POCSO Act to do away with its clash with MTP Act. India’s medical and legal infrastructure too needs improvement. Therefore, the need of the hour is for government and elements of civil society to come together and improve the substantive and implementational elements of India’s abortion laws and policy.

References

[1] All About Popular Issues, History of the Pro-Choice Movement, available at https://www.allaboutpopularissues.org/history-of-the-pro-choice-movement-faq.htm (Last visited on May 7, 2018).

[2] Id.,1.

[3] Center for Reproductive Rights, The World’s Abortion Laws (May, 2008), available at https://www.reproductiverights.org/sites/crr.civicactions.net/files/pub_fac_abortionlaws2008.pdf (Last visited on May 7, 2018).

[4] Hindustan Times, Safe abortions: Why India needs more trained providers, November 25, 2017, available at https://www.hindustantimes.com/columns/safe-abortions-why-india-needs-more-trained-providers/story-PVXmYCEeGZiFSDxAdiCwPP.html (Last visited on May 7, 2018).

[5] Id., 4.

[6] Lawyerslaw.org, The Medical Termination of Pregnancy Act, 1971, February 25, 2015, available at https://lawyerslaw.org/the-medical-termination-of-pregnancy-act-1971/ (Last visited on May 7, 2018).

[7] Id., 6.

[8] Report of Ministry of Health & Family Welfare Government of India, Guidance: Ensuring Access to safe Abortion and Addressing Gender Biased Sex Selection, page 6, (February 2015), available at http://www.fogsi.org/wp-content/uploads/2015/12/mtp-guidance-handbook.pdf (Last visited on May 7, 2018).

[9] INDIAN INSTITUTE OF POPULATION STUDIES, Youth in India: Situation and Needs 2006–2007, available at http://iipsindia.org/pdf/India%20Report.pdf (Last visited on May 7, 2018).

[10] Id., 9.

[11] Livemint, Abortion comes at a steep price in India, November 10, 2017, available at https://www.livemint.com/Science/a5QMsT48DwglFGzgIzIQ6H/Abortion-comes-at-a-steep-price-in-India.html (Last visited on May 7, 2018).

[12] The Indian Express, What’s wrong with India’s abortion laws?, December 6, 2017, available at http://indianexpress.com/article/gender/whats-wrong-with-indias-abortion-laws/ (Last visited on May 7, 2018).

[13] Vandana Prasad, Contrived Confusions:  No Contradictions Between PCPNDT and MTP Acts, Vol. 50, Issue No. 10 ECONOMIC AND POLITICAL WEEKLY (March 7, 2015).

[14] Rathi, Supra note 12.

[15] JUSTICE J.S. VERMA COMMITTEE, Report of the Committee on Amendments to Criminal Law, 443-444 (January 23, 2013).

[16] Rathi, Supra note 12.

[17] The Huffington Post, Why Is India’s Abortion Law Failing Its Women On So Many Fronts?, August 4, 2017, available at https://www.huffingtonpost.in/2017/08/04/why-is-india-s-abortion-law-failing-its-women-on-so-many-fronts_a_23063014/ (Last visited on May 7, 2018).

[18] Neha Madhiwalla, The Niketa Mehta case: does the right to abortion threaten disability rights?, Vol 5, No 44, INDIAN JOURNAL OF MEDICAL ETHICS (2008).

[19] Kokra, Supra note 17.

[20] Id., 19.