US Overturns Roe vs Wade: What Rights Does India's Abortion Act Guarantee?

In light of US SC overturning Roe V Wade, what rights does India's Medical Termination of Pregnancy Act guarantee?

(This was first published on 16 September 2020. It has been republished following the US Supreme Court overturning the historical Roe vs Wade judgment guaranteeing abortion rights to all women.)

Did you know that one-third of all pregnancies in India end in an abortion? There are at least 47 abortions per 1,000 women in the age group of 15-49 in the country, a 2018 study by The Lancet revealed.

Against this backdrop, how will the Medical Termination of Pregnancy (Amendment) Bill, 2020 (MTP), which suggests changes to India’s existing laws, impact these abortions?

Here’s a deep dive into what the MTP Bill is all about, including the pros and cons of the amendments.

What is the MTP Act? Who Can Get an Abortion Done in India?

The Medical Termination of Pregnancy (MTP) Act, 1971, provides the legal framework for making abortion services available in India.

Speaking to The Quint, Dr Nozer Sheriar, former Secretary General of the Federation of Obstetric and Gynaecological Societies of India, explained that a pregnant woman is allowed to seek abortion under the MTP Act if:

• The pregnancy could be harmful to her life, physical or mental health

• If there is a good chance that the child could suffer physical or mental abnormalities

As of now, pregnant women can seek abortion until their 24th week of pregnancy. They need to get the approval of two registered medical practitioners (RMPs) to get an abortion between 20 and 24 weeks.

However, abortion is a punishable offence under Section 312 of the Indian Penal Code, if the reason for the act does not fit into the framework drawn by the MTP Act. The person who performs the abortion without these reasons may be imprisoned for up to three years, while the pregnant woman could face imprisonment of up to seven years.

What Are the Recent Amendments to the Act?

• The Bill proposed increasing the gestation period of women seeking abortion from up to 20 weeks to 24 weeks

• Pregnant women would need to get the nod of only one RMP to get an abortion until 20 weeks, as a part of the proposed amendment

• Those seeking abortion between 20 and 24 weeks would need to get the nod of two RMPs

• Women seeking abortion beyond 24 weeks would need the permission of a medical board

While the above amendments have been debated by rights-based activists and gynaecologists, two other proposed changes have been welcomed by all:

• The 2020 MTP Bill includes a privacy clause, making it a punishable offence for revealing the identity of any woman who is seeking an abortion

• It has sought to change the term ‘husband’ to ‘partner’ so that the marital status of the woman does not hinder her abortion

“These are perceived to be great amendments and the way forward. Are India’s laws progressive? Yes. Around 26 countries in the world do not permit abortions and 39 allow it only if the mother’s life is at risk,” says Dr Priya Jain, a practicing gynaecologist with over 10 years of experience.

Why Are People Opposing the Amendments?

To put it simply, while the proposed amendments show signs of a more progressive law, the Bill still lacks a rights-based approach – making it mandatory for women to justify abortion, riddled with accessibility issues, reproductive rights activists tell The Quint.

This third-party authorisation of termination is against human rights, says Souvik Pyne who works with YP Foundation, an NGO that works for reproductive rights, among other issues. He added that 80 percent of abortions in India happen in the first trimester and simply giving the autonomy to women will make it a safer process.

Echoing him is Dr Sheriar. Speaking to The Quint, he says:

“First, when we talk about ensuring women have reproductive rights, we must give them the complete autonomy in the first trimester of pregnancy and allow abortion on request up to 12 weeks. I believe it is only then that a woman will truly be able to exercise her reproductive choices and make the best decisions for herself.”

Further, those seeking abortion beyond 24 weeks need to get the permission of a medical board.

"The amendment says that the medical board should include a gynaecologist, a paediatrician and a radiologist. Imagine trying to get such people on the board together in India’s rural ares. In most parts of the country, it is difficult to find even a gynaecologist. Also, what gives the guarantee that their personal prejudice will not come to play," asks Ipsa, who is a Delhi-based reproductive rights activist.

What's the Argument Against Increasing the Gestation Period?

A widely publicised amendment is how Indian women would now get the choice to terminate their pregnancy between the 20 and 24 week period if they are rape survivors, differently-abled, or a minor. They can also opt for it if their pregnancy is a result of incest or if doctors detect abnormalities in the foetus between the same period.

Activists point out that if the gestation period is being increased, it should be increased for all irrespective of their “kind” of pregnancy.

"Some things are looking very good on paper but if you dive deep into it, it is not really making much of a difference. Who is an RMP? The Act has a very narrow definition of this. Finding one RMP is difficult in most places, and it is only going to take longer for the pregnant person to find two RMPs," adds Ipsa.

Will Complete Autonomy Impact Female Foeticide?

Sex-selective abortion is the practice of terminating a pregnancy based on the predicted sex of the infant. The Pre-Conception and Pre-Natal Diagnostic Techniques Act was enacted in 1994 to ban sex-selective abortion and stop female foeticide. However, abortion and female foeticide are often thought of in combination by the general public.

So, will giving complete autonomy to women to choose whether they want to continue with their pregnancy worsen the female foeticide rate in India?

“When one thinks of abortion, they think it is being done to kill the female foetus. One has to note that 80 percent of abortions in India take place within the first 12 weeks, within days after the person finds about their pregnancy. It is medically not possible to determine the sex of the foetus within this time frame. Therefore, complete autonomy should be granted,” says Pyne.

However, Dr Jain warns that this could be misused as well.

“While I do vouch for complete autonomy, parents could engage in back-hand channels to determine the sex of the baby and then simply exert their choice to terminate their pregnancy,” she says, adding that this could lead to more sex-selective abortions and female foeticide.

What Amendments Should We Be Seeking?

COMPLETE AUTONOMY TO WOMEN

The Lancet study says that of the 15 million abortions taking place in India, 11.5 million are taking place outside healthcare facilities. The lack of autonomy to make a reproductive choice essentially puts the life of the pregnant person at risk.

“All pregnant people should have a choice. We can’t dictate that you should not feel certain way. Societal change has to be bought in another way in order to fight stigma. That can’t be done by restricting choices,” adds Ipsa.

A push for a women-centric approach and not a doctor-centric one, and shifting from a need-based law to a rights-based law, is what is needed.

INCREASE PROVIDER BASE

Dr Sheriar says that all doctors and nurses – not just gynaecologists – should be allowed to provide abortion services.

“While this is not the only solution, if we should make a small change in the MTP Rules to allow all MBBS doctors to provide medication abortion. This in itself will make a significant difference. We are robbing millions of women the right to access while doctors and nurses can actually provide safe abortion,” he adds.

INCLUSIVE LANGUAGE

The MTP Act (Amendment) 2002 changed the word ‘lunatic’ to ‘mentally ill person’ and the 2020 Bill has proposed to include ‘partner’ instead of ‘husband’. Along these lines, the term ‘pregnant person’ could replace ‘pregnant woman.”

“Usage of the term women and the Act were framed in 1971. In accordance with the NALSA judgment, and transgender person’s rights, the word should be a more gender inclusive term. Therefore, instead of using women, the government should consider using ‘person’.”

Souvik Pyne

While India’s MTP Act is considered “progressive,” activists ask why ignore further progress.

“When the Bill became an Act in 1971, it was hailed as progressive. India set an example for the rest of the world. But by ignoring rights of pregnant people, India has fallen behind. The MTP should be about their rights and nothing else,”concludes Dr Sheriar.

(This article was first published on The Quint on 16 September, 2020.)