ABORTION LAWS IN INDIA: BLESSING OR CURSE by-Aashdeep Kaur
The practice of abortion is normal as birth. There are some genuine reasons for which one has to take such step. The reason might be teenage pregnancy, unwanted pregnancy, rape or there could be financial and health concerns. Women who go for abortion often face health issues especially unmarried girls because of the lack of facilities. The social stigma and lack of awareness attached with abortion forces unmarried girls to go for unsafe abortions. Even married girls face health issues and contact infections because of the inappropriate methods of abortion. Women do not know about the extent of legality of abortion. The lack of knowledge leads to unsafe and illegal abortions. The laws are not being practised at ground levels. The limit set by the law of 20 weeks is not followed as such. Morally, abortion is a sin for some sect of people, they are of the opinion that no one has right to take the life of unborn child. This paper will examine the effects of limit set by the legislation. On one side, abortions are being done without caring about limit and on the other side this limit often puts women is vulnerable condition. This paper will focus on issue of appropriate limit for abortion. The conditions mentioned in legislation for termination of pregnancy also need a change because they act as barrier for extreme situations. The reasons for unsafe and illegal abortions are examined in this research. An interview of a doctor has been conducted for better understanding and formulation of suggestions. An overall research reveals the lacunas of legislation, ground reality of these laws, reasons for unsafe and illegal abortions and various other issues attached with this practice which causes lot of trouble for pregnant women.
Abortion means when a pregnancy ends abruptly, either voluntarily or involuntarily, and the foetus is expelled from the womb before it can live on its own”.2
According to oxford dictionary, ‘Abortion means the deliberate termination of human pregnancy mostly during the first 28 weeks.’
Abortion laws in India are provided in medical termination of pregnancy act, 1971. Laws are made to protect and to provide justice to people. Abortions laws were made to provide justice to pregnant women who wish to terminate their pregnancies due to number of reasons. These laws have been made much earlier for the welfare of women of the country but the provisions made under the act liberate as well as restricts a pregnant woman to abort on certain grounds. The MTP act proves to be a blessing to some women and a curse to other.
1.1 STATEMENT OF PROBLEM
The present research intended to focus on various issues and problems related to abortion laws in India. The problems related to implementation, awareness and out-dated provisions of this act has been covered in this paper. It critically analysis the practicality and reality which is far away from what has been written or proposed under the medical termination of pregnancy act. It shows the failure on the part of government and law making bodies who neither implemented it well nor has any step been taken to change certain provisions so that justice can be ensured to women.
1.2 RESEARCH OBJECTIVE The objectives of this research are:
1. To gain knowledge about the abortions laws in India.
2. To analyse the validity of provisions made under this act.
3. To check whether the objective of MTP act has been fulfilled or not.
4. To find out what and where the lacunas are.
5. To suggest solution to problems related with abortion laws
1.3 RESEARCH METHODOLOGY
For this research paper, I have used both doctrinal and non-doctrinal methods.
For doctrinal research, I have studied various articles, law journals, books, case laws etc. this type of research is done to gain more knowledge about the topic and to critically analyse the data related to types of abortion and unsafe illegal abortions. Case judgements were also referred for interpretation and to check the validity of laws
For Non doctrinal research, I have used interview method to collect information about the practical area.
2. HISTORY OF ABORTION LAWS IN INDIA
Before 1971, abortion was illegal in India under section 312 of Indian penal code 1860.According to this law; abortion done with or without the consent of women was punishable offence except in case where it was done to save the life of mother and in no other circumstances abortion was legal.
Section 312 of the Indian Penal Code states that “Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.3
In the 1960s, the alarming number of increase in abortions took place to address this; the Government of India instated a Committee in 1964 led by Shantilal Shah to come up with suggestions to draft the abortion law for India.
The Report of the Committee to Study the Question of Legalisation of Abortion (GOI, 1966), also referred to as the Shantilal Shah Committee Report, calculated a figure of 3.9 million induced abortions all of which were illegal since they preceded legalisation. The Report states: “If it is assumed that for every 73 live births, 25 abortions (i.e. 34.3 per cent) take place annually and of these 15 are induced (i.e.60 per cent), then in a population of 1000 there may be approximately 13.5 abortions (corresponding to the prevailing birth rate of 39) and of these, 8 will be induced”
The recommendations of this Committee were accepted in 1970 and introduced in the Parliament as the Medical Termination of Pregnancy Bill. This bill was passed in August 1971 as medical termination of pregnancy act.4
3. MEDICAL TERMINATION OF PREGNANCY ACT, 1971
The preamble of the Medical Termination of Pregnancy Act, 1971 read as follows- “An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto”
The preamble of MTP act 1971 clearly states its objective for providing legal abortions by registered medical practitioners but only for certain pregnancies.
The main objective to pass this act was to control the maternal mortality rate due to illegal and unsafe abortions.
3.2 CONDITIONS FOR TERMINATION OF PREGNANCY
Under section 3 of the MTP act pregnancy can be terminated under following conditions
• With the consent and opinion of one registered medical practitioner when length of pregnancy is up to 12 weeks,
• With the consent and opinion of two registered medical practitioners when length of pregnancy is up to 20 weeks,
• When the pregnancy has been caused by rape,
• When there is risk to the life of pregnant women or of physical or mental injury,
• When there is risk of physical or mental abnormalities to child when it will born,
• When pregnancy occurs due to failure of device or contraceptive methods, but this applies only to married women.
• Consent of guardian is must if a woman is below eighteen years of age or if women is above eighteen years and she is lunatic.5
4. ISSUES RELATED TO MTP LAWS
Although this act provides for legal abortion but the provisions of this act leads to injustice to some women in some cases. Law needs to be changed from time to time if it does not fulfil its objective of providing justice to people. Following are the some issues related to this act:
4.1 A LIMIT OF 20 WEEKS ACT AS BARRIER IN PROVIDING JUSTICE:
This limit has become barrier in the way of providing justice to women. This can be seen in cases that came before court in recent years. Some of those cases are discussed below:
Alakh Alok Srivastav v. Union of India6
In this case, Supreme Court rejected the plea of abortion of 10 years old girls who was 32 weeks pregnant at time. The court considers medical report which said that termination of pregnancy at this stage would not be good for both the girl and foetus life.
The girl was raped by her uncle for months and her pregnancy revealed when her mother took her to hospital when she complained of stomach ache. The district court dismissed the plea of abortion stating that she was too far in her pregnancy and abortion would be risky. The decision was upheld by Supreme Court.
Savita Sachin Patel And Anr V. Union of India And Ors7
In this case, a 37 years old woman filed a petition for seeking permission to terminate her pregnancy of 26 weeks because her child was diagnosed with Down syndrome, a condition that causes severe physical and mental abnormalities. The court taking into consideration the medical report denies the permission to terminate the pregnancy stating that Down syndrome does not possess danger to the life of woman as well as foetus.
The bench observed we have a life in our hands and also medical termination of pregnancy act prohibits aborting after 20 weeks.
Many cases have come across the courts but due to the limit of 20 weeks many women had to continue their pregnancy
4.2 UNSAFE AND ILLEGAL ABORTIONS
In 2017, reports have shown the percentage unsafe abortions which was 56% i.e., much closer to the countries where abortions are illegal in any circumstances.
The maternal death rate in India is around 8.5% due to unsafe abortions and 10 women die every day due to this reason.
The following data was collected by the lancet global health in 2015. It shows percentage of unsafe abortion in the said year.8 the consent of a guardian only if she is below 18 years of age.10
• Lack of safe abortion centres: According to section 4 of MTP act,”-No termination of pregnancy shall be made in accordance with this Act at any place other than,-
(a) A hospital established or maintained by Government, or
(b) A place for the time being approved for the purpose of this Act by Government.11
This section clearly says that abortion can be done either in government hospital or any other hospital or place that has been registered for providing MTP services.
This provision was created so that women can avail the facilities nearby to their places. But it is surprising that even after so many years of the commencement of this act still there is lack of centres that can provide MTP services, especially in rural areas.
Following table shows the figure of approved centres in subsequent years after the commencement of this act:
This chart shows the slow pace of growth of approved institutions providing MTP services in India. This shows the improper implementation of this act. Abortion care in the private sector is way too expensive. It is beyond what most Indian women, especially in rural areas, can afford. Although the public sector provides services free of charge, there are number of problems like deficient infrastructure, low quality of service. They are available but still not closer enough to the rural communities.12
The study published in BMC Health Services Research 2017 also indicates that women on an average travel 26 km to reach a secondary or tertiary level facility to seek abortion services. The out-of-pocket costs of travel, work-day loss, accompaniment, etc., in reaching distant public sector facilities can significantly burden families.13
• Lack of MTP doctors: According to section 2(d) of MTP act`, registered medical practitioner means a medical practitioner who possesses any recognized medical qualification whose Name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act.
The act allows only doctors with specialization in obstetrics and gynaecology or who have undergone a 12 day certification training to provide abortion services. This provision is also reason for a low number of abortion doctors in India .only 90000 doctors are there in India to provide for abortion services. This number is inadequate for estimated 15 million abortions per year. Majority of the doctors are available in urban areas. There is huge lack of doctors as well as abortion centres in rural areas. The doctors have to do training of 12 days to provide abortion services legally. It also amounts to one of the reasons of low number of abortion providers.
4.2.2 An interview conducted by CORT (centre for operation research and training)
It reveals the procedural problems and lack of facilities at training centres: Q: Why you do not get training in MTP?
Dr: What advantage I have? I have to go for 15 days out of my home leaving my family behind; I have to spend TA/DA first to be recovered afterwards. Who knows after how many months? On top of that I lose my earning from private practice.
Q: But after MTP training you could earn still more as you will start doing MTP. Is not MTP a good business?
Dr: Yes, but I am already doing it.
Q: Presently it is illegal. After training, you will get a Certificate to do MTP. Dr: Who (patient/authority) who ask for that?
At least 2 of the 6 doctors in Gujarat who were trained in Gujarat were interviewed by the CORT’s executive informed that they got the permission after more than 2 years since they applied for it. It was further observed that out of these 6 doctors, 3 MOs, even after training, were not providing MTP at PHCs/CHCs, because of lack of equipment.14
This shows that law has been made but nobody is bothered about how things are going in practical aspect. Even the provisions of the act is not appropriate for current scenario, they need change.
5. INTERVIEW CONDUCTED
I interviewed Dr.Sarabjit Kaur (B.A.M.S). I asked the following questions from her: Q: At what stages of pregnancy test are conducted to detect the foetal abnormalities? A: At three stages scans are done to detect the foetus abnormalities:
• First scan, when length of pregnancy is about 1.5 months (4-6weeks).
• Second scan, when length of pregnancy is about 3.5 months (12-14 weeks).
• Third scan, when length of pregnancy is about 5 months (20 weeks).
Q: foetal abnormalities can be detected at 20 weeks and law permits to abort within 20 weeks
, so what is your opinion that law should exceed this limit of 20 weeks?
A: on the consent and opinion of doctors abortions take place if there are abnormalities seen. Q: But it is illegal to abort without court permission after 20 weeks?
A: no, we provide them abortion if there is any abnormality seen in the foetus. It is not illegal, only abortion of unmarried is illegal.
Q: can you tell me any case that has come to you related to foetal abnormalities?
A: Numbers of cases come across every day. I remember one case when foetus didn’t have backbone i provided her abortion.
Q; In which week you provided her with abortion?
A: she was 21 weeks pregnant when we provided her with abortion.
This interview reveals the following points:
• The limit of 20 weeks in MTP act is inappropriate in case of foetal abnormalities as doctor said that a scan is conducted at 20 weeks also where foetal abnormalities can also be seen.
• The reality of illegal abortions, no one bothers about law abortions are conducted even after 20 weeks by doctors. The problem which unmarried women face due to unawareness about the legality of abortion of unmarried women. They are not provided with abortions easily even within 12 or 20 weeks of limit.
• The changes in respect to qualification, experience and training needed for abortion providers so as to increase the number of them.
• Abortion centres need to be decentralized to the last mile, so that it can be accessible for women of all areas.
• The limit to terminate the pregnancy need to be extended to 24 weeks and in case of abnormalities and pregnancy resulted from rape limit of length of pregnancy should not be considered.
• There should be protection of privacy of women by restraining abortion practitioners from revealing the identity of women who has terminated her pregnancy.
• Awareness programs should be there so that every woman get to know that abortion is legal in India.
• Only married women can terminate Pregnancy resulted from contraceptive failure, this should also applies to unmarried women with some limits.
These suggestions if implemented in actual will be beneficial for most of the issues related to this act. The minister of health and welfare has also proposed some amendments in this act in medical termination of pregnancy (amendment) bill in 2014.
Abortion laws should provide justice to women. Women should have access to safe and legal abortions as reproductive rights are one of the essential rights of human and it is already recognised in many international conventions. Abortion laws of India need to be urgently amended and better implementation of these laws has to be taken care of. As laws are made for people, so people should be made aware of their legal rights. Somewhere, MTP laws of India is discriminating the rights of women. So, women’s interest must be protected.
From the research it can be concluded that MTP act in some cases proves to be blessing for women of India and in some cases curse.
3The Indian Penal Code, 1860 (Act 45 of 1860),s.312.
4Abortion, eco India, available at:http://www.ecoindia.com/views/abortion.html(last visited on 29 May, 2021)
5 The Medical Termination of Pregnancy act, 1971(Act 34 of 1971), s. 3.
6AlakhAlokSrivastava V. Union of India & Ors (2018) 5 SCC 651.
7SavitaSachin Patel And Anr V. Union Of India And Ors (2017) 13 SCC 436.
8Susheelasingh et al., “The Incidence of Abortion and Unintended Pregnancy in India”6 The Lancet Global Health
9Awareness of legality of abortion in India ,crea, available at: http://www.creaworld.org/abortthestigma/awareness-legality-abortion-India (last visited on 29 May, 2021).. 10 The Medical Termination of Pregnancy act, 1971(Act 34 of 1971), s. 3 (4).
11 The Medical Termination of Pregnancy act, 1971(Act 34 of 1971), s. 4.
12M.e khan, sandhya barge and George Philip, “Abortion in India: an overview”, 26 social change5 (1996).
13Opinion: looking beyond the legality of abortions, live mint,available at: https://www.livemint.com/Opinion/yCN9cRSjS4a6r5FKjcGoTM/Opinion–Looking-beyond-the-legality-of- abortion.html(last visited on 1 May, 2021).
14M.e khan, sandhya barge and George Philip, “Abortion in India: an overview”, 26 social change11 (1996).