According to the Health Management Information System (HMIS), ten women reportedly die due to unsafe abortions every day in India. Globally, 56 million abortions take place every year. In South and Central Asia, an estimated 16 million abortions took place between 2010 and 2014, while 13 million abortions occurred in Eastern Asia alone[1]. In today’s scenario, the term abortion is much needed to discuss due to its increasing death rate of women because of the unsafe abortion. Abortion is one of the disputable ethical issues because it concerns the taking of human life. With regards to the traditional arguments for and against abortion, one could plot legal and religious arguments complement each other. Those who favor abortion put forth their argument that abortion represents a woman’s “right to choose” whether to continue her pregnancy or terminate it. Anti-abortionists, make a religious argument as the lead of their collective opposition to abortion.
Presently the abortion has been legalised in many countries after the verdict of the US Supreme Court in the case of Roe v. Wade[2]. The opposition still prevails who believe that termination of pregnancy should be legally prohibited. In India, through the medical termination of pregnancy act, abortion is legal for a broad range of medical and social reasons.
Recognizing the high estimated incidence of abortion-related mortality and morbidity in parts of India this paper reviews the literature on the history of abortion law in India, abortion facilities and providers, complications of unsafe abortion, and why women go for unsafe abortion. The review aims to synthesize what is known about abortion in India and identify steps that need to be taken to develop abortion-related services that more closely meet Indian women’s needs.
Evolution of the MTP Act:
The Indian Penal Code 1862 and the Code of Criminal Procedure 1898, with their origins in the British Offences Against the Person Act 1861, made abortion a crime punishable for both the woman and the abortionist except to save the life of the woman. Except in cases where abortion was carried out to save the life of the woman, it was a punishable offense with three years imprisonment for those who caused a woman to miscarry and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine[3].
The alarmingly increased number of abortions taking place so that the central family planning board on August 25, 1964; recommended the Ministry of Health and Family Welfare (MoHFW) on alert. To address this, the Government of India instated a Committee called Shanti Lal Shah committee in 1964 led by Shantilal Shah carried out a comprehensive review of socio-cultural, legal and medical aspects of abortion, and in 1966 recommended legalizing abortion to prevent wastage of women’s health and lives on both compassionate and medical grounds and come up with suggestions to draft the abortion law for India. The recommendations of this Committee were accepted in 1970 and introduced in the Parliament as the Medical Termination of Pregnancy Bill. The same was passed as the Medical Termination of Pregnancy Act in August 1971.
The MTP Act, passed by Parliament in 1971, legalised abortion in all of India except the state of Jammu and Kashmir. After scrapping down the article 370 of the constitution of India[4] in the period of BJP party by the Honorable Prime Minister Narendra Modi, now the Medical Termination of Pregnancy Act applicable to the newly formed two union territories (Jammu & Kashmir and Ladakh). Despite more than 30 years of liberal legislation, however, the majority of women still lack access to safe abortion care in India.
MTP ACT:
In India, The Medical Termination of Pregnancy Act was passed in 1971. The law allows a woman to undergo abortion only until 20 weeks. Under this Act, women have a restricted right to abortion. This Act provides for termination of pregnancy on health grounds and in those cases where there is a danger to life or risk to the physical or mental health of a woman and also on the humanitarian ground where the pregnancy arises from sex crimes like rape or intercourse with lunatic woman etc[5].
The Act consisting of eight sections stating the time, the place and the circumstance in which the pregnancy may be terminated by a registered medical practitioner. This Act was formulated with the object to knock down the incidence of illegal, unsafe abortion and consequent maternal morbidity and mortality rate.
Why is it important to amend the MTP Act 1971?
- According to a study published in The Lancet Global Health, 15.6 million abortions occurred in India in 2015 of which 78% of these were outside health facilities. The third-leading cause of maternal deaths in the country is due the unsafe abortion. Since 10 women die every day as a result of unsafe abortion. Even though the abortion has been legalised 10 years ago.
- Other obstacles to safe abortion are the doctors hesitate to provide abortion services to women and young girls since the implementation of the Protection of Children from Sexual Offenses Act, 2012 (POCSO Act), and the Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT). Many PIL has been filed in recent times for seeking abortion.
- The existing MTP Act, 1971, is need to be amended with regard to the changing times, needs and advancements in medical science. The MTP act states that abortions can only be provided for up to 20 weeks. However, there have been many contentions regarding the extension of abortion period beyond 20 weeks since foetal abnormalities can only be detected after 20 weeks.
- The MTP Act failed to provide the clear provisions for the unmarried women to terminate a pregnancy due to contraceptive failure since considerable stigma is attached to having a non-marital pregnancy or birth. For second-trimester abortions, the consent of two medical practitioners is required, which is practically not possible in rural areas where a second medical practitioner is not available.
- The amendments are overdue. There is a need to increase the gestational age from 20 to beyond that. This is not only a legal issue, but also a health issue. The MTP Act should be amended to provide guidance to doctors for every situation.
MTP – POCSO:
- The Government of India enacted the Protection of Children from Sexual Offences Act, 2012 (POCSO) in order to prevent and address child sexual abuse. Under section 19(1) of POCSO Act[6] mandates reporting of a case of sexual offence on a minor female to an appropriate authority like the local police or special juvenile police unit or child protection committee or any person in an organisation who can then report the resulting pregnancy to the appropriate authority like the Chief Medical Officer. This reporting needs to be done regardless of the minor girl’s consent to go ahead with the termination according to the Medical Termination of Pregnancy Act. The Act does not emphasise the marital status of the minor.
- In a country where child marriage is still prevailing, and marital rape is not contemplated a crime, the purpose of the legislation could be defeated if a minor is exploited within the confines of her wedlock. An imprisonment term of six months along with a fine will follow in case of a deliberate failure to report such an offence. This is in harmony with the Criminal Procedure Code.
- Quite conflicting to the legislation as mentioned above (POCSO), the Medical Termination of Pregnancy Act, 1971 insists protecting the identity of the girl who is the victim. It also does not mandate any reporting when a victim seeks an abortion. Therefore, the contradictions in the two legislations are very crucial at the most fundamental level, and the same need to be amended in order to bring clarity and practical ease in executing sensitive issues concerning a woman and her bodily integrity and image in the society.
MTP-IPC:
The Indian Penal Code criminalizes penal abortion in order to regulate the practice of abortion in India, some of the relevant provisions of the act are stated below.
Section 312 of act criminalizes those who voluntarily cause miscarriage to women. Section 313 makes it punishable to cause miscarriage without the consent of the women. Section 314 convicts those who intend to cause only miscarriage to a woman with child causes her death. Under section 316 a person is guilty when he does an act likely to cause its death though neither intended nor desired.
Why do women have illegal abortion?
IILEGAL ABORTION: an abortion performed contrary to the laws regulating abortion. Illegal abortions are often associated with life-threatening complications.
The qualified or government health providers are usually not available in the rural areas; or if available, the beneficiaries have to face many official and legal intricacies.
In most of the occasions the patient confidentiality is breached. There are also instances where, the workers at public hospitals and government MTP centers often have disrespectful attitudes towards those women seeking MTP service. On many occasions, it has been seen that these centers lack adequate infrastructure to provide immediate, hassle-free services[7]. Consequently, the illegal way of getting abortion service done from the spurious provider remains the only option for those helpless women.
Unsafe abortion:
Unsafe abortion occurs when a pregnancy is aborted either by persons who doesn’t possess the mandatory skills prescribed by the government or in an environment that does not conform to basic medical standards, or both.
In practice, limited access to authorized abortion providers, the threat of forced contraceptive acceptance, the financial costs associated with legal abortion, the stigma associated with induced abortion, and low levels of awareness regarding the legality of the procedure bar women from safe abortion services. As a result, women often resort to untrained clandestine practitioners operating under unsafe conditions. The consequences of abortions performed under such circumstances range from life threatening to chronic reproductive tract morbidity such as infections, chronic disability and infertility.
Conclusion:
The ability to reproduce is that which makes women distinctive from men. But in reality, do women have control over their own reproduction? Do women actually have access to safe birth control methods? A big ‘NO’ in answer to such questions led to the emergence of the women’s health movement in different parts of the world. In India, legalising abortion through the MTP Act has not yielded the expected outcomes. The current situation warrant reforms in the trend of abortion practice; and need to initiate a campaign to raise public awareness with a special attention to the unreachable, rural sectors.
Therefore, it is the responsibility of the medical community and society to offer love and support to women with unplanned pregnancies and to guide them in finding empathetic alternatives to abortion. Indian medical and legal infrastructure also needs to be improved.
References:
- https://www.indiatoday.in/india/story/13-women-die-in-india-every-day-due-to-unsafe-abortions -1296850-2018-07-26
- https://gh.bmj.com/content/4/3/e001491
- http://www.manupatrafast.in/pers/Personalized.aspxhttps://indiankanoon.org/
- https://www.scconline.com/
- https://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion
- https://en.wikipedia.org/wiki/Unsafe_abortion
- https://www.ndph.ox.ac.uk/news/two-thirds-of-abortions-unsafe-in-over-half-of-indian-states-stu died
- https://blog.ipleaders.in/critiquing-indias-abortion-laws/
[1] Available at: https://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion Last visited on Sept 14,2019
[2] Rao vs wade 410 U.S. 113 (1973)
[3] The Indian Penal Code, 1860
[4] The Constitution of India
[5] Yasmin Siddiqui vs The State Of Madhya Pradesh WP. Nos.27328/2018
[6] The Protection of Children from Sexual Offences Act, 2012, India, available at: https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf (last visited on Sept 16, 2019).
[7] Surendra Chauhan vs State Of M.P criminal appeal no: 342 of 1998
This Article is authored by Kousalya Ravi, Student of B.Com LL.B (Hons.), SASTRA , Thanjavur
