FEATURE: INDIA Prime Minister’s Cabinet tables proposal for abortion law reform

From: Feminism in India, 22 November 2018

On 29 January 2020, the Cabinet of Prime Minister Modi published the text of a bill to amend the Medical Termination of Pregnancy Act, 1971. The bill is to be introduced in the ensuing session of the Union Parliament, where it will be debated. A summary of the current law, the amendments it proposes, and responses to the bill by leading NGOs working for abortion rights in India are reported below. Text in quotes is taken direct from the source.

The Medical Termination of Pregnancy (MTP) Act 1971

The 1971 Act says that a pregnancy may be terminated up to 20 weeks of pregnancy with the approval of one registered medical practitioner up to 12 weeks of pregnancy, or the approval of “no less than two registered medical practitioners” from 12 to 20 weeks of pregnancy. Approval must be given “in good faith” that:

“(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health, or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

If the pregnancy results from rape, or it occurs “as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children”, the anguish caused “shall be presumed to constitute a grave injury to the mental health of the pregnant woman” (and abortion is therefore legal). In addition, account may be taken of “the pregnant woman’s actual or reasonable foreseeable environment”. Anyone under the age of 18 or “who is a lunatic” requires the consent of a guardian. Otherwise, “no pregnancy shall be terminated except with the consent of the pregnant woman” (that is, no other consent except the woman’s is required). Terminations must take place in a hospital established or maintained by Government, or any other stipulated approved place. Finally, no legal proceedings may be taken against a medical practitioner who provides an abortion in good faith. The rest consists of several pages of regulations.

The Cabinet’s justification for amending the law

“The Medical Termination of Pregnancy (Amendment) Bill 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. The proposed amendments include substitution of certain sub-sections, insertion of certain new clauses under some sections in the [1971 Act], with a view to increase upper gestation limit for termination of pregnancy under certain conditions and to strengthen access to comprehensive abortion care, under strict conditions, without compromising service and quality of safe abortion.

“It is a step towards safety and well-being of the women and many women will be benefitted by this. Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.

“In order to increase access of women to safe abortion services and taking into account the advances in medical technology, the Ministry of Health and Family Welfare proposed amendments after extensive consultation with various stake holders and several ministries.”

The amendments proposed

– The opinion of only one provider is required for termination of pregnancy up to 20 weeks.

– The opinion of two providers is required for termination of pregnancy of 20-24 weeks.

– Abortion would be legal from 20 to 24 weeks for “special categories of women”, including “vulnerable women” such as “survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors) etc”.

– The upper time limit of 24 weeks would not apply in cases of “substantial foetal abnormalities diagnosed by Medical Board”. “The composition, functions and other details of Medical Board to be prescribed subsequently in Rules under the Act.”

– “Name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.”

SOURCES: Medical Termination of Pregnancy Act 1971 ; Press Information Bureau Government of India, 29 January 2020

*********************************** 

RESPONSES FROM ADVOCATES FOR SAFE ABORTION IN INDIA

Vinoj Manning, Ipas Development Foundation, Delhi, India

“The current set of proposed amendments is a welcome move but woefully short of the scope of the original draft amendments shared in the public domain in 2014. Notably missing is the expansion of first trimester abortion provision by nurses, auxiliary nurse midwives (ANMs), and doctors of the Indian system of medicine. That was the most significant provision which could have dramatically increased access to safe abortion in the country.”

+++

Subha Sri Balakrishnan, Rural Women’s Social Education Centre (RUWSEC), Chennai, Tamil Nadu, India

“The proposed amendment is as of now only a bill that has been approved by Cabinet for introduction in the next session of Parliament. It will come into effect only if it gets passed by both houses of Parliament. With contentious laws, this is not always a given. So I would wait till the bill gets passed before saying anything about it.”

+++

Sangeeta Rege and Padma Bhate-Deosthali, Centre for Enquiry into Health and Allied Themes, Mumbai, India

“There has been a lot of buzz on the subject. This is our reading of the amendments at this stage:

– By allowing approval by one provider (MD Gynaec or MBBS trained as per MTP Act), access to abortion care will improve. There is a need to also ensure safe methods of abortion, including access to medical abortion pills.

– Women and children accessing MTP between 20 and 24 weeks will no more require to go to the courts or be presented before a medical board, as the decision will now be undertaken by 2 registered medical practitioners. This will prevent the rigmarole that they are currently subjected to, as a decision will be taken at the level of the individual health facility. This is a welcome move – that there is a recognition of trauma caused due to unwanted pregnancies in situations of sexual abuse of children and adults, including girls and women who are differently-abled and have experienced sexual violence.

– Primacy has been given to confidentiality of information related to women and girls accessing abortion services, which is useful.

– The spirit of the recommendations speaks of comprehensive abortion services, as well as quality of care not to be compromised.

– Yet it seems that 24 weeks is an arbitrary gestational age. It is still not 3rd trimester abortion, that is, beyond 24 weeks*. There have been a spate of rape survivors, both women and children, with much higher gestational ages (3rd trimester) unable to access MTP. Three cases of children as young as 10 years of age were forced to continue their pregnancies to full term in our recent experience.

– There is a need to demand private sector accountability, as they tend to refer MTP cases to public hospitals, especially with rape survivors as these cases are not found to be lucrative.

– There is limited knowledge about the safety of 3rd trimester abortion amongst providers, as well as the courts, despite a growing body of evidence on safe techniques and procedures to undertake it. The proposed amendments do not take this reality into account nor the lack of training of providers to conduct 3rd trimester abortions. This becomes a barrier.

– The Criminal Law (Amendment) Act 2013 and the Protection of Children from Sexual Offences Act 2012 guarantee the right to treatment of rape survivors. Abortion therefore needs to be seen as a right for all rape survivors – children and women – irrespective of the limits of the MTP Act.”

[*The third trimester of pregnancy begins at 28 weeks- Editor]

+++

Pratigya Campaign’s statement on MTP Act Amendments approved by the Union Cabinet

Pratigya Campaign for Gender Equality and Safe Abortion extends a cautious welcome to the government announcement approving the long overdue amendments to the MTP Act, 1971. While we welcome the government’s intention to bring about reforms in the now dated abortion law in India, the approved amendments have fallen short of the changes proposed in the draft MTP Amendment Bill notified in 2014….

We would urge the government to consider extending the gestational limit to all women seeking abortions up to 24 weeks. The advancement in medical technology enables detection of some serious foetal abnormalities between 22-24 weeks; extending the gestational limit for all women will help them assess and decide on the outcomes of their pregnancy. We recognise that the proposed amendments will benefit vulnerable women (including survivors of rape/incest) to an extent. However, a larger number of women will benefit if gestational limit for special categories of women is removed entirely. There can be no greater harm to the mental and physical health and well-being of women, than carrying a pregnancy arising out of rape/incest to term. Pratigya Campaign’s analysis of court cases relating to abortion shows that 41% of rape survivors who approached the courts had exceeded 24 weeks gestation.

We welcome the decision to remove the requirement of opinion of two providers for 12-20 weeks and would advocate that this decision be extended to 24 weeks, given the small number of specialists who are authorised to provide abortion services beyond 12 weeks.

It is commendable that the upper gestational limit for foetal abnormalities will be removed, but it is disappointing that it requires women to seek approval of medical boards for substantial foetal abnormalities. Subjecting women to a medical board which will decide the cases is disrespectful towards their dignity and rights. This also legitimises third party authorisation which is uncalled for and against the spirit of the original MTP Act, which leaves the decision between the woman and her provider. In the past we have seen women and girls seeking abortions face delays, stigma, and repeated invasive exams by unfamiliar doctors on judicially-established medical boards, which could present a significant barrier to women needing timely service and care. We believe the opinion of the woman’s provider regarding substantial foetal abnormalities should be sufficient.

The approved amendments to the MTP Act will not be helpful to the vast majority of 15.6 million women (an estimated 90% of whom access abortion care before 12 weeks gestation in the country who seek induced abortion each year, and will have negligible impact on reducing maternal mortality or morbidity due to unsafe abortion. To make transformative changes in access to safe abortion care and uphold “women’s reproductive rights over their bodies” we would urge the government to take bold decisions to overhaul the MTP Act keeping the interest of women and their rights at the centre.

Specifically we would urge to the government to consider the following:

– Extend gestation limits from 20-24 weeks for all women, not just ‘certain categories of women’

– Remove upper gestational limits for ‘vulnerable women’ (including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, minors etc.)

– Drop the need for Medical Boards to decide in cases of substantial foetal abnormalities and accept the opinion of the woman’s provider

– Allow all women and not just married women to seek an abortion due to contraceptive failure

– Expand the provider base to include trained nurses, ANMs and AYUSH doctors to enable them provide abortions up to 12 weeks, in line with WHO recommendation

– Make abortion a right and available on request at least for up to 12 weeks gestation

Most of the above recommendations were arrived at by a series of stakeholder engagements that the Ministry of Health and Family Welfare had facilitated and were included in the draft MTP Amendment Bill which was notified by the Government in 2014.

We are yet to see the full text of the bill and urge the government to share it widely with all stakeholders.

We would strongly urge the government to be bold in affirming its commitment to women’s reproductive health and rights by making substantial amendments to the MTP Act.

FULL STATEMENT WITH REFERENCES: 6 February 2020

See also: Pratigya Campaign’s infographics on MTP Act Amendments via Twitter

+++

Facebook ASAP, 30 January 2020

Suchitra Dalvie, Asia Safe Abortion Partnership, Mumbai, India

“Many of us greeted the news with cautious optimism…. But on reading the details of the amendments proposed one is forced to wonder if this is just fussing around over minor details while continuing to ignore the larger issues of women’s autonomy and agency? For these amendments to truly bring about wide ranging change we must remember one crucial thing about true change – it happens only with a shift in power. Until the archaic patriarchal notions of the need to criminalize various sexual and reproductive aspects of our lives (such as Section 377 in the Indian Penal Code) are done away with, any legislation like the MTP Act, which is mainly meant to protect the doctors and not the women involved, is not likely to result in genuine change….

If [expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds]were truly the intent of the proposed amendments to expand access of women to safe abortion services then the Bombay High Court as well as the Supreme Court Bench that deliberated on the Right to Privacy have already articulated a far broader interpretation:

“Recognising a woman’s prerogative to make decisions about her health and body, the bench ruled that “there is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as guaranteed under Article 21. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.” The judgment further states that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”….

“The phrasing “to strengthen access to comprehensive abortion care, under strict conditions” hints at the fact that the underlying attitude is that abortions need to be controlled somehow. One has to question what makes an abortion such a different concern compared to say neurosurgery or cardiac surgery?…. There are laws which already provide for criminal punishments for grievous injury which would encompass any such surgery without consent or done with negligence or criminal intent. Why can those similar laws not apply to abortions also and the decision of providing the service be left to the person who is pregnant and their doctor?…

“What we would need from a good law is that it should ensure no woman is turned away or forced into an unsafe abortion or into continuing a pregnancy that is unwanted. These current proposed amendments do not address that nor do they in any way hold the government and the public health sector facilities accountable for ensuring any of this.”

EXCERPTED FROM: The ASAP Blog, 30 January 2020

+++

FRHS India Statement on Union Cabinet’s announcement on MTP (Amendment) Bill 2020

While any change in law or policy that advances women’s health and rights is welcome, the amendments to the MTP Act approved by the cabinet seems to fall short of expectations and needs, which various stakeholders have been advocating for many years.

There seems to be a conflicting report on the increase in gestational limit from 20 to 24 weeks. The reading of the Press Information Bureau’s statement dated 29th January 2020 and the op-ed by a cabinet minister in a national daily today indicate that this increase is only for ‘special categories of women (including vulnerable women, survivors of rape, incest, differently abled women, minors etc.)’ However, other media reports seem to suggest that the increase in gestation limits from 20 to 24 weeks is for all women. We hope this is correct and if it is, it would be a much bigger step in the right direction. FRHS India is not yet privy to the actual draft bill in its entirety and waits for the bill to be shared widely.

The intention to address the needs of vulnerable women and those who want to terminate their pregnancy due to substantial fetal abnormalities is commendable. However in order for these women to fully benefit from the intention, we would urge the government to consider the following:

1. Remove upper gestation limits for vulnerable women such that they are allowed to terminate at any point during the pregnancy as the trauma caused by sexual assault and resultant pregnancy can adversely impact her mental health and compromise her right to life and liberty.

2. For substantial fetal abnormalities, the amendments propose constituting medical boards to decide the cases. FRHS India believes this decision should be based on the opinion of the woman’s doctor alone. Subjecting women to undergo repeated medical assessments by an unfamiliar panel is disrespectful, humiliating and can also delay access to abortion care.

3. While we welcome the decision to remove the requirement of opinion of two providers for 12-20 weeks, we would like to urge that this decision be extended to 24 weeks, given the small number of specialists who are authorised to provide second trimester abortions in the country.

The above changes would translate the government’s intention to reality.

The amendment in its current form (if what is mentioned in the PIB statement is correct) will address only a small, yet important part of the problem. However it is unlikely to have significant impact on women’s access to safe abortion care or reduction in maternal mortality and morbidity.

The amendments approved by the Cabinet address only a small but important section (less than one percent) of the estimated 15.6 million women who seek abortions annually in the country. There is enough evidence on the need to overhaul the MTP Act to make it contemporary and align it with advancements in medical technology. For the amendments to be truly progressive and address the needs of gender justice and reproductive rights we would urge the government to also address barriers over 14 million women who seek abortion within 12 weeks and 1.5 million between 12-20 weeks face in accessing abortion care. This would include progressive changes to the MTP Act to include issues like making abortion a woman’s right; expanding the provider base by allowing trained Nurses and AYUSH providers to offer abortion up to 12 weeks and for contraceptive failure to be grounds for women irrespective of their marital status. While the amendments approved by the cabinet is in the right direction, it is our hope that larger issues highlighted above will be also be incorporated in the final MTP (Amendment) Bill 2020 prioritizing women and their reproductive rights.

SOURCE: FRHSI statement, 31 January 2020