By Lakshmi Kailasan, Vivekananda Institute of Professional Studies, New Delhi.
Medical termination of pregnancy which is more commonly addressed as abortion, may be defined in medical terms as the premature exit of the products from the uterus. To explain it in simple terms, it is the removal of an unwanted foetus. Going back in time to reflect on the status of abortion, it was punishable under the Indian Penal Code thereby suggesting the complete infringement of a woman’s right to life and personal liberty guaranteed by the State under Article 21 of the Indian Constitution. Prior to 1972, not only did the penalizing lead to violation of the law but also resulted in unsafe abortions being conducted by untrained medical practitioners, a problem which to some extent exists even in today’s time.
The provisions for abortion in India are governed by the Medical Termination of Pregnancy Act enacted in 1971 (which was amended in 2002), along with the MTP Rules, 2003 and the MTP Regulations, 2003. In order to prevent the adverse consequences resulting from unsafe abortions the Central Government released the Comprehensive Abortion Care (CAC) Training and Service Delivery Guidelines in 2010 which were then updated in 2014. In order to address the issues of extending the permissible period for abortion provided under the 1971 Act, from 20 weeks to 24 weeks, The Medical Termination of Pregnancy (Amendment) Bill of 2014 was presented; however, it is still pending for approval.
The existing frameworks, though, good in theory, lack practical and realistic application. For instance, let us consider the categories of women who may need to go through the procedure. Firstly, we have the basic categorization of married and unmarried woman. These two categories can further be divided into:
- Married Women:
- Married women in urban and rural settings.
- Literate and illiterate married women.
- Working and unemployed married women.
- Unmarried Women:
- Unmarried women in rural and urban setting.
- Literate and illiterate unmarried women.
- Unmarried women below and above 18 years of age.
In discussions related to abortion, one cannot overlook the discrimination a woman faces on the basis of her marital status. The laws and the amendments take into account various changes required keeping in mind the current needs that have arisen; however what these laws do not take into consideration is their applicability in a much more morally and socially evolved society. The Indian society, both in urban but especially in the rural areas looks down upon premarital sexual intercourse. Women, especially unmarried women are hesitant in discussing their sexual status and health with their parents. In such circumstances, the result of an unwanted pregnancy, apart from taking a mental toll on the woman has various other serious repercussions. Not only are these women subjected to the judgmental tones of unprofessional doctors and staff of other medical institutions, they are also financially exploited on the account of their vulnerability.
In the age of internet and the urge of people to self diagnose themselves, women seek help from online communities. A simple search on Google asking, “How can I get an abortion in India?” would reveal various articles suggesting methods and previous experiences of people. A quick read of the experiences throw a light on how unmarried women are threatened that their information will be leaked, how they need the consent of parents even when the woman is above 18, how they are forced to provide their husband’s or father’s name, even when they don’t want to and how they are subjected to humiliating questions and unwanted counseling from doctors and other staff. Such instances make the woman uncomfortable and further hinder the process of considering the history of the patient for effective treatment.
Further discussing the horror of self diagnosis, given the fact that the name of the drugs and the process of their administration is so readily available online, poses a great threat to the health of women. Registered practitioners, who take undue advantage of such women, force them to look for other recourse which involves unsafe methods which could cause permanent damage. One such instance was of an unmarried woman having gone through the procedure of abortion from an unauthorized place which led to remains being left in the uterus which later became septic resulting in permanent damage to the woman’s uterus. An earlier intervention by proper professionals might have helped avoid the tragedy, but the woman was swept with fear of the consequences if her parents got to know. The situation worsens in the rural areas where there is already a lack of registered facilities and adding onto the fact is the backward mentality of the elders in such communities.
Let’s not however forget the plight of the married bunch. Unmarried women are not burdened by the choice they are making which is not true for the married women. They are independent in making the decision to terminate the pregnancy despite of not being entirely free of the consequences that may follow. Legally, a married woman does not require the consent of her husband for abortion. However, this right given to a woman cannot take away the right of a man to want his own family. Keeping in mind this aspect, the Supreme Court in the case of Suman Kapur vs Sudhir Kapur (2009) 1 SCC 422, upheld the decision of the subordinate Courts in granting divorce to the husband on grounds of mental cruelty amounting from abortion being conducted without his knowledge or consent.
Considering the fact that most foetal and congenital defects are detected during the 20th-24th week of pregnancy and the plethora of recent Supreme Court Judgments laying down exceptions contrary to the MTP Act, the need to amend the existing Act was felt. In recent judgments of 2017 by the Supreme Court of India, the Court held vastly different views in two different cases. In one, the Court allowed termination of pregnancy of a woman who was 24 weeks pregnant as it was necessary to preserve the mother’s life. However, in the other the termination was refused as the foetus was diagnosed with Down’s syndrome and the Court opined that the foetus did not impose a threat to the life of the mother, and the child when born will be able to live a normal life.
One cannot however ignore the ramifications of the child being born but being abandoned. Such over-interference of the State into the lives of people and their reproductive choices not only affects the Right to Privacy of the individuals but also fails to take into account that it is not the State that will be responsible for the proper upbringing of the unwanted child, thereby possibly sacrificing a dignified life.
So how effective are the new suggested amendments in tackling the issues that have been discussed and what else needs to be incorporated in the Act? The Medical Termination of Pregnancy (Amendment) Bill, 2014 brings into purview abortion, on request of women whose pregnancies are below 12 weeks. It replaces the term “married woman” with “any woman or her partner” in the explanation to Section 3 in cases involving failure of contraceptive methods. This takes into account the rise of live-in relationships, homosexual couples etc. Additional provisions regarding maintenance of confidentiality and separate provisions for punishments assure women of a safe and effective way for terminating pregnancies. The need also exists for increasing awareness amongst women of all ages about their rights relating to abortion. The Amendment should extend not only to the registered clinics and hospitals but also to other medical institutions such as imaging labs where related procedures are carried out. Further there needs to be a constant check and vigilance over how doctors conduct themselves in such situations, their prescriptions, and the medical processes, through effective communication by amassing reviews from patients.