This article is written by Sakshi Thukral.

Introduction

Discordance and conflict between implementation of certain fundamental rights has been an incessant challenge faced by almost every country’s judiciary and executive in the modern contemporary world. One such challenge is presented by the conflict between the Right to life and the Right to choice on account of a woman’s right to abort her pregnancy in her full mental capacity. The correct estimation of incidence rates of induced abortion in India has not been possible due to lack of country-wide research and studies. The statistics provided by the Ministry of Health and Family Welfare are found unreliable due the shortcomings in constituting the abortions carried out in private sector and unrecognised facilities. 

The first national study of the incidence of abortion and unintended pregnancy in India, conducted jointly by researchers at the International Institute for Population Sciences (IIPS), Mumbai; the Population Council, New Delhi; and the New York–based Guttmacher Institute in 2017 showed that an estimated 15.6 million abortions were performed in the country in 2015. This study also concluded that about 70 abortions out of every 1000 were due to unintended pregnancies amongst the women of age group 15-49.  The author would like to ascertain that these statistics are as a result of implementation of a better and progressive law to protect a mother’s right to terminate pregnancy by her choice in her right mind. While on other hand this study also revealed that about 5% of the 15.6 million abortions were carried out in unsafe and non-sterile health facilities which are not approved by the government.

Such high incidence of unsafe termination of pregnancies especially in a country with inadequate and insufficient medical facilities with respect to its vast population size hints towards the need of reform to ensure protection of reproductive health and empowering women in terms of reproductive rights to remove the social stigma faced by them throughout their lives regarding abortions. Besides the above mentioned abortions arising from unintended pregnancies, pregnancies arising from unconventional practises like incest, prostitution, rapes and other sexual offences are another major factor that demand a better and empathetic abortion law that recognises the right to choice of pregnant women and empowers them both medically and legally.

History of Abortion Laws

“No woman can call herself free until she can choose consciously whether she will or will not be a mother.”

Under British rule during the late 19th century, the laws implemented were radically conservative. The practise of abortion and any miscarriage inducing procedures were strictly banned and were only allowed in extreme situations to save the life of the women. This was further set in stone by the Indian Penal Code, 1862 and the Code of Criminal Procedure 1898 which had its origins in the British Offences against the Person Act of 1861. This deemed abortion and related practises to be a punishable offense and both the pregnant woman seeking abortion and the abortionist were to be held guilty. Post-independence, medical practitioners throughout the country complained about rising cases of severely injured pregnant women resulting from unsafe abortion practises in non-sterile conditions by unskilled practitioners. The government of India appointed the Shantilal Shah committee to review the socio-cultural, legal and economic aspects of medical termination of pregnancies. 

After thorough study and research on all fronts, the Shah committee recommended legalisation of medical termination of pregnancy to ensure safety of women health and strengthening of their reproductive rights on medical and compassionate grounds. 

On the account of recommendations of the Shah committee, a new act was enacted in 1971 called Medical Termination of Pregnancy Act (1971). 

The MTP Act of 1971 ensured that no registered medical practitioner providing abortion service will be held guilty for any crime if the termination of pregnancy was carried out in terms with the Act. Another salient feature of MTPA was that unintended pregnancies due to failure of contraceptive methods used by any married women or her husband with the purpose to limit the number of children was a legitimate ground of abortion if the length of pregnancy doesn’t exceed 20 weeks and is confirmed and presumed to be of graved danger to mental health of the mother by two registered medical practitioners in good faith.

The MTPA also provided abortion rights to victims of rape and sexual offences as the pregnancy resulting from the heinous crimes is to be presumed to cause a grave injury to mental health of the pregnant woman. Besides this the Act also provides legitimate grounds to termination of pregnancy if the medical practitioner has a reason to suspect that the child, if born, may suffer from any physical or mental deformity or disease. 

The procedures related to criteria and approval of abortion facilities, requirements of proper documentations and record maintenance are defined by the he Medical Termination of Pregnancy Rules and Regulations 1975. These regulations were aimed to further strengthen the regulation and reduce unsafe abortion at unapproved hospitals or facilities. Abortions provided in any medical or private facility not approved by the government is deemed illegal and it is established that it is the hospital/practitioners responsibility to obtain prior approval. 

Despite implementation of the Act in 1971, the years that followed showed only a marginal increase in the number of abortions recorded in government recognised abortion facilities. 

Even though MTPA was progressive and aimed to improve the condition of reproductive healthcare among women and empower women reproductive rights, there were certain shortcomings that resulted in the declining rate of abortions in public abortion facilities. More than often women chose private abortion by unskilled and non-registered over government approved public abortion facilities due to various social, cultural and economic reasons. 

Thus, after careful and sustained deliberations and discussions amongst several government and non-government organisations, another bill was passed through the Indian parliament that led to further liberalisation of abortion laws in India. 

Medical Termination of Pregnancy (Amendment) Act, 2002 and amended Rules and Regulations, 2003 was an effort by the government to decentralise the legislative regulation of abortion facilities from state to district level. Another significant feature of the amendment was establishment of punitive measures of 2-7 years of imprisonment for practitioners who provide induced abortion services or own a facility that provides abortion or induced miscarriage related services. Other than that, the amendment also established certain physical standards for first trimester abortions while the physical standards for second trimester abortions remained the same. 

Current landscape of abortion provisions

Since the implementation of MTPA in 1971, the estimation of national abortion incidence has been performed twice in 1994 and 2002. The problem with these estimates is that they didn’t cover the rate of incidence of abortions on a national-level but were conducted on a small-scale. The Ministry of Health and Family Welfare is responsible for providing statistics related to number of abortions and has been doing so since the past 20 years. The data provided by the ministry is not reliable as it greatly underestimates and only covers the number of abortions recorded in public abortion facilities that are recognised by the government. To understand the discrepancies a little better, the author would like to compare findings of a study conducted by the ministry to a study conducted by researchers at the International Institute for Population Sciences (IIPS), Mumbai; the Population Council, New Delhi; and the New York–based Guttmacher Institute: 

• In 2015, the Ministry of Health and Family Welfare concluded that around 701 415 abortions have happened in the period of 2014-15.
• The study conducted by IIPS and Guttmacher Institute found that out of an estimated 48.1 million pregnancies in 2015, only 53% resulted in births. About 47% of the pregnancies in women aged between 15-49 years ended up with abortions or miscarriage. 

Another major flaw of the data provided by the ministry is that it doesn’t include the abortions performed in private facilities and by foreign medical professionals who practise medical termination of pregnancy despite being non-registered or qualified. The data provided by the study conducted by IIPS and Guttmacher Institute establishes that a majority of 81% of induced abortions were carried out using medications that cause miscarriage and 91% of such procedures were provided in unrecognised and illegal abortion facilities while only 2% were actually conducted in public facilities. Surgical abortion constitute about 14% of the recorded incidence of abortion with a majority (75%) of them occurring in private facilities. 

Medical Termination of Pregnancy (Amendment) Bill, 2020

The latest amendment bill of MTP Act was passed on 17th March 2020 by the lower house of the Indian Parliament. The bill carries forward the legacy of progressive liberalisation of abortion laws and promises improvement of the rate of maternal mortality rates and strengthening the reproductive rights of women even further. The changes in the Act include amendments in Section 2, 3 and 6 of the Act and insertion of a whole new Section 5A in the Act through the amendment. The amendment in Section 3 raises the limit of termination of pregnancy by a registered medical practitioner from 20 to 24 weeks with opinion of two medical practitioners determining the necessity of abortion in good faith. Although termination of pregnancy is an option for a section of vulnerable women, it is not available to all women.

The Act still provides the responsibility of determining the need for pregnancy termination to the registered medical practitioner as per the terms of the Act. A salient feature of the bill is that a pregnancy occurring due to failure of any device used by ‘any woman or her partner’ with the purpose of limiting number of children may be presumed to constitute a grave injury to the mental health of the woman. This is a major progressive change in the Act which earlier only accounted for failure of contraception by the ‘woman or her husband’. This amendment now recognises and covers couples in live-in relationships, sex-workers and pregnancies arising from adultery.  However, the bill makes a clear distinction that pregnancy due to rape and sexual offences ‘shall be presumed’ to be detrimental to mental health of the victim while pregnancy arising from failure of contraceptives ‘may be presumed’ detrimental to the health of pregnant woman seeking abortion.

Even though the detriment caused by a heinous crime like rape to mental health of the rape survivor can’t be accentuated enough but the difference in technicalities of presumption may provide an opportunity to a medical practitioner to refuse abortion to a woman seeking termination of an unintended pregnancy due to failure of contraceptives. Lastly, with the insertion of section 5A, a new provision is made to ensure protection of identity of the pregnant women seeking medical termination. It dictates that no registered medical practitioner can reveal details or particulars of the woman seeking medical termination unless required to be presented to a person authorised by law for the time being in force. 

Conclusion

The overall dynamic of liberalisation of abortion laws in India has been gradual, progressive and aimed at improving healthcare for pregnant women. After almost 50 years of implementation of MTPA, the constitutional framework has slowly evolved into a better and more empathetic version of itself through continuous deliberations and amendments. Although the current provisions even in the 2020 amendment of MTPA still don’t satisfy all sects of the society, yet it is a reasonably progressive and more humane bill ensuring strengthening of a woman’s reproductive rights.

Another strong criticism of MTPA is its bias amongst the healthcare providers as it excludes all mid-level practitioners of alternative medicine and has a ‘registered allopathic medical practitioner only’ policy. Despite the fact that MTP (AMENDMENT) Bill, 2020 provides abortion rights to rape survivors and women with unintended pregnancies, it still fails to decipher the conundrum of decreasing abortion incidences at public facilities as pregnant women still chose private facilities because of variety of reasons including unavailability of proper medical care and equipment at public abortion facilities, social stigma and other socio-economic obstacles. 

In short, it can be concluded that the overall dynamic of MTPA has been gradually rewarding to women in need but there is still a long way to go. 

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