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India’s abortion laws may be more progressive than that of the US, but our doctor-centric approach must change.
The American House Judiciary Committee held a hearing over the issue of abortion access last week, even as the final decision of the Supreme Court in the matter is awaited.
In 1973, the US Supreme Court in the landmark Roe vs Wadeone judge had ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.
This landmark decision, which legalized abortion in America and struck down many US federal and state abortion laws now seems to have been overturned, according to a leaked draft from the Supreme Court. If it is allowed to go through, it would be the first time the American apex court has gone back on a vital freedom that was allowed to women all these years.
Anticipating the Supreme Court judgement, several Republican-led states have already taken measures to restrict abortion access. Oklahoma, incidentally, became the first state in this “Great Leap Backwards” passing a bill banning abortion from the moment of fertilization on May, 19th2022. The move is seen by many, including Vice President Ms. Kamala Harris as a blatant attack on women’s rights by the legislature. Experts believe that under privileged women and women of color will suffer the most, if the progressive law is overturned. Pro-life activists, meanwhile, are celebrating.
In contrast, India, historically has been a far more progressive land when it comes to abortion laws. However, it’s worth examining if the law, as it stands now, is sufficient to ensure women’s autonomy and right to make choices over abortion.
India’s abortion law, known as the Medical Termination of Pregnancy ( MTP) Act, came into effect on April 1972. In other words, abortion has been legal in India for the past 50 years. The Shantilal Shah committee recommended legalisation of abortion in India in December 1966. The recommendation had a great deal of political support at that time.
Until the mid-sixties, abortion was not allowed in India under Section 312 of the Indian Penal Code, 1860 (IPC). It was also a punishable offense with a possible imprisonment of three years.
The Shantilal Shah committee, which looked into the issue, amended the law, wherever required. For a developing and deeply conservative nation, this was indeed a progressive step. The committee recommended legalizing abortion after going into the legal, medical and socio-cultural aspects. This, it felt, would encourage women to seek safe abortions with medical supervision and prevent needless maternal deaths.
The MTP Act became a law in 1972 after being cleared by both the houses of the Parliament in 1971. The law was applicable in all states except Jammu and Kashmir.
The act, however, did not allow for abortion by choice., It added several conditions under which an abortion could be sought. It stated that it was applicable, “for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”. The conditions under which an abortion was allowed are as follows:
- In cases where the duration of pregnancy was not more than 12 weeks. If the duration of pregnancy was up to 20 weeks, then the consent of two medical professionals were required
- If the abortion could be carried out by a registered medical practitioner
- If it could be shown, medically that the pregnancy in question could pose a risk to the woman’s health
- If the baby could suffer impairment that would affect the wellbeing of both the mother and the child.
Contraceptive failure and rape cases were also valid grounds for abortion, again with the consent of the doctor. The Shantilal Shah committee had also recommended abortion care and counselling as part of the medical procedure, which unfortunately has fallen by the wayside over the years..
Many legal experts believe that this doctor-centric approach to abortion is detrimental to the holistic care of a woman undergoing the procedure, as there is very little a woman can do by her own free will or choice, when it comes to terminating pregnancy. There hasn’t been any change in this approach till date.. This dissonance explains why there has been several legal interventions over the years on this issue.
Of Suchita Srivastava v Chandigarh Administration2, the supreme court of India had ruled that the appellants pregnancy as a result of rape in a government welfare institution be terminated. The survivor, however, wanted to deliver the baby and the Supreme Court fulfilled her wishes. The Indian Express lauded the move in an editorial saying the apex court’s decision allowing the survivor to exercise her choice as “a woman’s right to privacy, dignity and bodily integrity” should be respected.
The Supreme Court intervened again on June, 8th 2016 to provide relief, when the Gujarat high court rejected a petition seeking to terminate the pregnancy of a 14-year-old rape survivor in 2015 citing that abortion was allowed only till the 20th week, under the law. The survivor was in every 24th week of pregnancy. The abortion was eventually allowed by the Supreme Court in the 26th week.
In February this year, the Uttarakhand high court allowed a rape victim to have abortion at 28 weeks.
India’s abortion law has remained unchanged for over five decades with a brief amendment in 2002 to allow abortion medication to be used. In 2021, the Rajya Sabha approved the Medical Termination of Pregnancy (Amendment) Bill, 2021, raising the upper limit for abortion from 20 to 24 weeks in special cases. These special cases include rape and incest survivors, , minors and the differently abled. The survivors required the approval of one or two doctors depending on whether the abortion takes place at 20 weeks or 24 weeks.
The question we must examine is whether the law recognizes abortion entirely as a woman’s choice. Why can’t a woman choose to have an abortion if she wants to, for whatever reason she deems fit, as is the case in 73 other countries? The approval of two doctors to terminate pregnancy at 24 weeks can lead many a woman to seek unsafe back alley abortions.
In states where medical facilities are few and far between, women will have to travel considerable distance to reach a functioning medical facility where they can get the necessary consent from a doctor or doctors, as the case may be.
To make matters worse, the MTP law clashes with other laws like the Protection of Children from Sexual Offences (POCSO) Act. The POCSO law stipulates that anyone under the age of 18, seeking abortion must be reported. As a result, many adolescents girls may opt for unsafe abortions for fear of social or parental opprobrium. A United Nations Population Fund (UNFPA)’s State of the World Population Report 2022 stated that about 67% of abortions in India are unsafe. It is the third leading cause of maternal deaths in the country.
India’s Medical Termination of Pregnancy (Amendment) Bill, comes at a time when the landmark Roe v. Wade in the US Supreme Court is under scrutiny. Even though India’s abortion policy and laws are progressive, its effective translation into improved access for safe abortion care is just as critical.
Despite positive developments in abortion legislation, especially when compared to the US, India still has a long way to go. It is time to make changes in the law and allow abortion on demand. Given the poor state of medical facilities in the country , women are often unable to access safe abortions within the timeframe stipulated by law or get the required permission from a qualified doctor. Perhaps, it is time to take a new look at this issue from the prism of a woman’s reproductive and human rights.
1. 410 US 113 (1973)
2. (2009) 9 SCC 1
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