Image: A young woman with three children waits for an abortion and sterilization. (Priyanka ParAshar/Mint via Getty Images)
In October 2023, a 27-year-old woman approached the Supreme Court in India with a petition to terminate her pregnancy, which was over 24 weeks. She had discovered it late and was undergoing treatment for post-partum psychosis following the birth of her second child, which left her without the “physical, mental, psychological and financial” wherewithal to continue with a third pregnancy. A two-judge bench initially ruled in her favour, affirming “the right of a woman over her body.”
Yet the law in India only allows for terminations over 24 weeks in cases of fetal abnormalities or to save the life of the mother, and the case was later reopened after a doctor from the All India Institute of Medical Sciences, a premier hospital and medical college in Delhi where the abortion was to be conducted, asked for a court directive on whether a “feticide” could be performed since the fetus, in her words, was “normal”.
This time around, the same bench yielded a split verdict and the matter was put before another bench, headed by Chief Justice of India D.Y. Chandrachud, who after 12 days of deliberation rejected the abortion plea.
This verdict was seen as a step back after previous progressive strides had been made in abortion jurisprudence in India. In September 2022, months after the U.S. Supreme Court overturned Roe v. Wade, India’s top court moved to expand access to safe and legal abortions by explicitly giving the same rights to single women and survivors of marital rape (which is yet to be criminalized in India) as other populations who were previously protected.
Yet in the October 2023 case, the court deemed fetal viability — or rather, the absence of fetal anomalies — as reason enough to deny the pregnant woman access to a medical abortion, despite risks to her mental health. The two judicial decisions point to divergent attitudes shaping the jurisprudence about abortion in India….
The Act has been amended twice (in 2021 and 2022)… but it does not give a pregnant person the right to get an abortion on demand. That choice has always been in the hands of doctors and the courts regardless of the medical, social and personal circumstances surrounding a pregnancy….
“The law in itself is vaguely worded, and there’s a reason why it is like that,” explained Mumbai-based lawyer Abubha Rastogi. [It] lets the medical practitioner see the actual or reasonably foreseeable environment of the pregnant woman when deciding whether continuation of the pregnancy will have an impact on her mental or physical health or whether there are substantial fetal anomalies….”
According to a United Nations Population Fund report, two-thirds of all abortions in India are unsafe, and close to eight women die every day because of causes related to unsafe abortions, making it one of the leading drivers of the country’s already high maternal mortality rate….
The MTP Act isn’t the only law that determines access to abortion in the country. A cocktail of laws, including ones that look into prenatal sex detection, child sexual abuse and drug regulations, complicate access even in the early stages of pregnancy….
A 2021 study led by the US-based Center for Reproductive Rights reported that doctors in India often ask those seeking an abortion to obtain spousal consent or police permission, neither of which are required under the law. They “counsel” women to continue their pregnancies, shame single women for their sexual behavior and face no consequences when they refuse to provide legal abortions.
“Since there is no right to seek an abortion, there is no penalization under the law for denial of service. That translates into a lot of control wielded by providers in terms of gatekeeping women’s access to abortions,” said Subha Shri Balakrishnan, an abortion service provider and member of CommonHealth India, a coalition of doctors that advocates for increased access to sexual and reproductive health care for women and marginalized communities.
Moreover, the MTP Act stipulates that all abortions be conducted by an ob-gyn and mandates that all abortions be carried out in public or government-approved private hospitals with one or two registered practitioners, depending on the gestational age. In several areas, gynecologists are available only at the district or subdivisional hospital level, which are few and far between, forcing women to travel long distances if they want to access legal abortion services….
[The issue of fetal sex determination also became a major issue in the 1980s and 90s and led to restrictions on use of prenatal sex determination and selection, affecting access to services as well.]…
In 2012, when the Protection of Children from Sexual Offences (POCSO) Act went into effect to safeguard people under the age of 18 from sexual assault, sexual harassment and pornography, it required anyone with knowledge of adolescent sexual activity to report it to the police. Failure to do so could lead to imprisonment of up to six months. But this stands in conflict with the MTP law’s confidentiality clause, which directs medical practitioners to protect the abortion seeker’s identity. Service providers are thus caught between the legal mandate to report the pregnancy of a minor and the need to maintain patient confidentiality. Fearing legal hassles and investigations, some service providers refuse altogether to see pregnant minors, while others insist on a court order before providing medical care.
Then there is the 1940 Drugs and Cosmetics Act, the provisions of which can sometimes prevent access to medical abortion (MA) pills,… [which] can be sold only on the prescription of a registered practitioner, and pharmacists must maintain a register recording the details of those procuring these pills…. According to a 2018 report by Pratigya Campaign, a network of individuals and organizations working toward advancing access to safe abortion care in India, the mistaken belief … that all abortions are sex-selective, coupled with low awareness of the MTP Act, leads drug regulators, especially in states with a low ratio of female to male births, to conduct frequent surprise visits, raids and crackdowns on pharmacies…. Regulatory issues were cited by nearly 70% of pharmacists surveyed by the Pratigya Campaign as the biggest reason for not stocking MA drugs.
“Because of these ambiguities, medical practitioners either refuse to do an abortion or send their clients to court, so that they can seek protection,”… said Dipika Jain, a professor of law and director of the Centre for Justice, Law and Society at the Jindal Global Law School…. For all abortion petitions where the 24-week gestational limit has been crossed, courts rely on the opinions of medical boards…. For many women, access to the nearest hospital with a medical board means traveling long distances, incurring additional costs and significant delays in getting an abortion, which increases the medical risks. There have been instances of medical boards asking women to make several visits to far-off hospitals for multiple examinations, prompting some of them to withdraw their pleas for late-term abortions.
Moreover, judges’ reliance on the opinions of medical boards instead of the women’s own gynecologists has led to more invasive examinations and greater delays. Often, when they are unsatisfied with the opinion of one medical board, courts solicit opinions from multiple boards in the same case, causing further delays and… medical examinations…. One study suggests that considerations of fetal viability and rights have entered courtrooms primarily through the opinions of medical boards.…
The Kerala High Court late last year denied the petition of a 12-year-old rape survivor to abort her 34-week pregnancy, after she pleaded “cataclysmic consequences to her physiological and psychological condition.” The court based its judgment on the opinion of a second medical board….
Yet it is young girls who have survived sexual assault who are more likely to seek late-term abortions….“For them to understand that they’ve missed their period or suspect that they’re pregnant takes a few months, and then the family has to find the resources to seek medical services… Besides, threats from abusers — who are usually family or affiliated with family — dissuade underage survivors from disclosing the assault until they’re visibly pregnant.”…
…Abortions rights activists, service providers and lawyers have been pushing for a (constitutional) rights-based framework for abortions…. Some abortion-related jurisprudence in India has already laid the ground for such a framework. In 2009, the Supreme Court held that a woman’s right to make reproductive choices “to procreate as well as to abstain from procreating” is part of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. In 2017, the court reiterated these observations in a landmark privacy ruling, adding that reproductive rights are derived from the fundamental right to privacy, dignity and bodily integrity protected by the Indian Constitution….
The sections of the Indian penal code that criminalize abortion need to be repealed, said Jain, the law professor. If they are repealed, then “no abortion is illegal and we don’t need the Medical Termination of Pregnancy law. We can do with guidelines or some protective legislation so that there is no discrimination on the ground for women, so they can access abortion services,” she said….
SOURCE: New Lines Magazine, by Sohel Sarkar, 9 September 2024.