Mumbai, Maharashtra: A new study suggests that proposed changes in the law governing abortion are not feasible and could hamper access to safe abortion procedures in India.

The Medical Termination of Pregnancy (MTP) Amendment Bill, 2020 requires every state and Union Territory to set up a Medical Board to diagnose “substantial foetal abnormalities” and permit abortions beyond 24 weeks of gestation. But the research suggests that the added layer of examination will cause critical delays for women seeking safe abortion services.

The bill is expected to be introduced in the Rajya Sabha in the ongoing Budget session. It seeks to amend the Medical Termination of Pregnancy Act, 1971, which provides the legal framework under which abortion care is provided in India.

The constitution of Medical Boards is itself unfeasible owing to an acute shortage of the required qualified doctors in India, the study titled Medical Boards for Access to Abortion Untenable: Evidence from the Ground found. The proposed Board will comprise gynaecologists, paediatricians, radiologists or sonologists.

In the rural parts of north India, the availability of obstetricians and gynaecologists, paediatricians and radiologists fall short by 84.2%, 68.76% and 74.5% respectively. The rural south fares only slightly better, the study points out. Talking of state-wise records, scheduled areas in Himachal Pradesh have a 98% shortage of obstetricians and gynaecologists. In the rural areas of Tamil Nadu and Gujarat, the availability of these specialists is almost nil. The same is the case all over Arunachal Pradesh, Meghalaya, Mizoram and Sikkim.

Professor Dipika Jain, the lead author of the study that has been conducted by the Centre for Justice, Law and Society (CJLS) at Jindal Global Law School, calls these Medical Boards “draconian and invasive”. She says they strip away autonomy from the pregnant person, which has been recognised by the Supreme Court in its decisions in cases like Puttaswamy, Navtej Johar and Joseph Shine.

Sanaya, a 31-year-old from Mumbai who doesn’t have children, also condemned the idea of “policing a woman’s body, especially of those who may be economically not on par with the people who are to chair these proposed boards.

This was echoed by Amruta Ghanekar too. She works with an organisation engaged in the area of Sexual and Reproductive Health and Rights (SRHR) and feels that “regulating women's bodies is against their human rights.”

Enable 24-week limit for all

However, experts and activists have welcomed two new changes proposed. One, the provision to let unmarried women cite contraceptive failure as a valid reason for seeking an abortion. Two, the move to increase the 20-week gestational limit for abortion to 24 weeks with the approval of two Registered Medical Practitioners (RMP).

Hailing the revised gestational limit, VS Chandrashekar, CEO of Foundation for Reproductive Health Services (FRHS) India, says, “By the time they [the survivors of sexual abuse] realise they are pregnant, seek information and decide to terminate the pregnancy, they reach 20-24 weeks.” Failing to abort and going ahead with the pregnancy and birth in these cases takes a toll on their mental and physical health, says gynaecologist Dr Deepti Gupta from Bhopal.

Institutional delays often force women to go through with the birth or seek out unsafe alternatives. Credit: Pixabay

Currently, the recourse for abortions beyond 20 weeks is to file a writ petition in high courts or the Supreme Court. But the fear of criminal prosecution and confusion around the legal framework is known to deter doctors from performing abortions even in permitted instances. A 2019 report by the Pratigya Campaign for Gender Equality and Safe Abortion found that a notable number (23%) of High Court petitions (between June 2016 to April 2019) requesting abortions were for pregnancies below the 20-week limit and/or as a result of rape.

The new limit would lessen the legal burden and allow gynaecologists more time to assess the foetal abnormalities and take necessary action. “We discover lethal [foetal] abnormalities at only around 20 weeks,” Dr Gupta explains.

Simmi Somjee, a mother of one from Mumbai, also favoured the 24-week cap. She shared her reasons with 101Reporters, “The risks to the life of a pregnant person tends to increase after 24 weeks.”

But the 24-week cap is not without its share of gaps. It applies to a “certain category of women,” which remains hitherto undefined. Creating distinctions between women who are allowed abortions at different weeks is a step towards complicating the law, these experts argue.

Other concerns

The advocacy groups have flagged other loopholes in the Bill.

For instance, if pregnancies need to be terminated under 20 weeks, it would require the approval of an RMP. This is a step back from the draft Amendment bill of 2014, which proposed that abortions before the 12th week be approved “on the request of a woman.”

The Amendment also makes changes to the privacy clause, under which the particulars of the pregnant woman must be revealed to “a person authorized in any law for the time being in force” when the situation demands. Earlier, the person terminating the pregnancy could divulge the information only if ordered by the courts but this amendment would enable officials under the PCPNDT Act, POCSO Act and even the Drugs and Cosmetics Act to access such information.

‘Improve access to abortion’

Pointing to the poor levels of healthcare funding and infrastructure in the country, the CJLS report recommends that the government return the Bill to the standing committee for further deliberation on the concerns around access to abortion.

Members of the Pratigya Campaign have made further recommendations: abortions up to 12 weeks should be permitted on the request of the pregnant person; there should be no upper gestation limit for survivors of sexual abuse; the gestation limit of 24 weeks should include all pregnant persons and should require the opinion of only one RMP; the identity of the pregnant person should not be disclosed to anyone unless ordered by the court. They have also made suggestions to replace the word ‘abnormalities’ with ‘anomalies’ and ‘woman’ with ‘person’ or ‘pregnant person.’

Institutional delays often force women to go through with the birth or seek out unsafe alternatives and they suffer from severe complications such as incomplete abortions, haemorrhage, infections and infertility, the CJLS study has found. It must be noted that unsafe abortion procedures are the third leading cause of maternal deaths in the country, translating to roughly eight deaths daily.

Lead pic used for representational purpose only; credit: Pixabay