Discussing the legislative answer to the abortion question

Over the last few months, we have devoted an enormous amount of energy in discussing a recent health crisis. This has inevitably, and unfortunately, let equally important developments slip by without much discussion. One such development is the introduction of the Medical Termination of Pregnancy (Amendment) Bill 2020, which has been passed in the Lok Sabha recently.

Discourse around abortion in India

In a country where politics and religion find their way in all things animate and inanimate, abortion has quite surprisingly been spared of the contamination. A political, though not entirely wrong, explanation would be that the debate was swept to an irrelevant corner by the reformative sentiment that drove the country and the governments of the post-independence era. This would imply that back in 1971 (the year when the first legislation on abortion was passed), the policy makers were driven primarily, if not entirely, by the liberal and reformative principles. Although more evidences like the Hindu Marriage Act could be used to substantiate this argument, it will not hold true entirely for the abortion question[1]. Abortion, till then criminalized under section 312-316 of the Indian Penal Code 1860, was not taken up for reconsideration until the 1960s. It was only after a significant buildup of global discourse for liberal abortion laws that the government of India decided to reconsider the national position on abortion. Moreover, the 1971 legislation that decriminalized abortion, came from a family planning organization signaling that reformation was not the only intention of the government.

A more appropriate explanation for the abortion question being spared of contamination is that, unlike in other countries, the popular debates around it were never about the dichotomy between life and choice. The more conservative, pro-life argument could not gain much credence among people who were eagerly looking for a solution to the population problem whereas the more liberal, pro-choice argument got subsumed by the rigid social norms in India. Unlike in other countries, the question of abortion had little to with religion but more to do with the Indian society. On the one hand, abortion was considered a solution to unwanted pregnancies which challenged the social norms, and on the other, it was an unpopular and socially unacceptable method of family planning.

Medical Termination of Pregnancies Act (MTPA), 1971

The Medical Termination of Pregnancies Act (MTPA) 1971 decriminalized abortion up to 20 weeks of gestation. Since then India has been hailed as a champion of reproductive rights, and the act has been celebrated and defended as an emancipatory social legislation. The MTPA 1971 was certainly a significant improvement in the context of abortion rights for it granted women a qualified access to safe abortion services as opposed to a jail term. However, the act did not address the bigger problem of illegal and unsafe abortions.

Though liberating, the act was limited in its scope in at least three ways. One, it did not cover pregnant women beyond 20 weeks of gestation; two, it did not entirely cover women other than those who were married; and three, it granted limited rights to a woman over her body. While a bar of 20 weeks of gestation for abortion could be understood as a response to the supposed limits of medical science with respect to safe abortions, the other two were essentially a result of a compromise between a liberal intent and a surrender to Indian values.

In letter and in spirit, the MTPA legalized abortions for women for whom the continuance of the pregnancy involved a risk to their life or could lead to a grave injury to their physical or mental health. It also allowed for abortion of pregnancies in which foetal anomalies were detected. In explaining what constitutes ‘injury to mental health’ the act also explicitly covers pregnancies caused by rape and pregnancies caused due a failure of contraception (only in case of married women). This meant that an unmarried woman could not access legal and safe abortion unless she could establish that the pregnancy was a result of rape or that the foetus was not developing properly. In such situations the only recourse that such a woman had was to go for an illegal, mostly also unsafe abortion.

Abortions when performed under safe and regulated settings are extremely safe. In fact, abortion of pregnancies in a very early stage of foetal development (gestation age < 6 weeks) can also be performed through non-surgical (medical) interventions[2]. Medical procedures are being widely adopted across the world as a safe and effective alternative to surgical procedures. These can be administered at more mature stages of pregnancy (up to 10 weeks of gestation) too, but better results (complete abortions) are observed if the intervention is made at an earlier stage. Similarly, safe and effective interventions also exist for administration at a later stage of the pregnancy[3].

Studies have shown that despite the availability of a wide range of safe and simple abortion procedures, many women across the world opt for unsafe methods of abortion. The rate of unsafe abortions[4] could be as high as 67% for India (BMJ Global health). Most of the women who undergo an unsafe abortion are those who are denied an abortion by law and are also economically or socially marginalized.

In many cases, illegal abortions are performed by individuals with limited medical knowledge and with no formal training. The non-surgical measures of unsafe abortion include ingestion of locally available abortifacients like herbal pills, intended to cause trauma to the uterus. On the other hand, the surgical methods often involve use of abortion sticks. With a growing number of people getting to know about medical abortion, self-induced abortion by an administration of specific drugs (mifepristone and misoprostol) has also become quite common. Although a scientifically proven intervention for abortion, the impact of such drugs reduces after the first 6-10 weeks of pregnancy. Unsafe abortions do not always lead to maternal death. In many cases they lead to complications like hemorrhage, sepsis and trauma, and conditions like infertility. By not universalizing abortion rights, the MTPA 1971 has in fact facilitated unsafe abortions. The desire of a male child and the stigma associated with abortion have also contributed to unsafe abortions. While the latter has little to do with the act, the former was made possible by the act itself. Sex determination was made possible by the arrival of pre-natal diagnostic techniques which were also essential in determining foetal health and status, one of the four qualifications for legal abortions.

The MTPA 1971 had set the age of 20 weeks of gestation as the upper limit for availing a legal abortion. The act mandated a review by 1 registered medical practitioner (RMP) for terminating 3 months old pregnancies (gestation age 12 weeks or less) and a review by 2 RMPs for terminating 3 to 5 months old pregnancies (12 to 20 weeks). Beyond limiting women’s right over her body, this part of the act was also criticized for proposing a blanket limit of 20 weeks of gestation for an abortion. Although this cutoff was set in place in order to prevent life-threatening abortions, over the years this limit has undermined the very objective of the act.

Foetal anomalies are essentially a result of Intra Uterine Growth Restriction (IUGR). It is defined as foetal growth less than the normal for the population and for the growth potential of the infant. IUGR could either be symmetric or asymmetric[5]. This means that growth indicators (head circumference, body weight and length) of an infant could either be proportionally or disproportionally restricted. Although symmetric IUGR is considered as a far greater complication, both symmetric and asymmetric IUGR infants are at a high risk of perinatal and neonatal mortality. In the context of MTPA 1971, the real challenge is that of a timely detection of IUGR (foetal anomaly). The act sets a limit of 20 weeks while studies suggest that IUGR can only be confirmed by (or after) the 24th or the 26th week of gestation; at least 4 weeks after the limit[6].

Medical Termination of Pregnancy (Amendment) Bill, 2020

Beyond decriminalizing abortion, the MTPA 1971 offered little respite in the event of an unwanted pregnancy. It was unable to prevent unsafe abortions. Acknowledging the above discussed and other limits in the MTPA 1971, the act was first amended in 2002 when the regulation of abortion facilities was decentralized from the state to district committees. The purpose of this was to improve access to safe and regulated abortion facilities. However, a more significant amendment to the act has come recently. In March 2020, the Lok Sabha[7] passed the Medical Termination of Pregnancy Bill, 2020. This amendment proposes a wide range of changes in its predecessor.

The amendment bill 2020 significantly enlarges the beneficiary base. Matrimony is no longer an essential condition to claim abortion on the grounds of failed contraception. The term ‘husband’ has been replaced by the term ‘partner’. This correction shall allow more women to opt of legal, safe and regulated abortions. It also offers greater right to a woman over her body by reducing the number of RMP permissions required for terminating 12 to 20 weeks old pregnancy, and guarantees privacy by penalizing the sharing of information with unauthorized person(s).

The bill proposes to amend the gestational limit of legal abortion from 20 weeks to 24 weeks. This not only offers the abortion right to women who discover foetal anomalies later in their pregnancy but also provides the much-needed time to rape victims and to minors to consider and to arrange for the termination of their pregnancy. While this is a welcome move it might not be good enough for cases where ‘substantial foetal abnormality’ is to be used as an argument for an abortion. Although, it is possible to screen and to identify vulnerable foetuses at an early stage of pregnancy, confirmation of foetal anomaly is only possible closer to the amended gestational limit for an abortion. Thus, this part of the amendment is likely to solve only a bit more than a half of the problem associated with the previously established limit of 20 weeks.

Although the amendment bill contains the much-needed upgrades, it falls short of being the best possible legislative answer to the abortion question. In the bill pending in the upper house ‘substantial foetal abnormalities’ has been set as a condition for the justification of an abortion. The problem here is that the act does not clarify what constitutes ‘substantial foetal abnormalities’. Will a foetus, identified with a chromosomal abnormality (trisomy 13, 18, 21) be considered a substantially ‘abnormal’ foetus. If yes, then a far more important question is, how will this decision not impact the status of those individuals who have survived the condition and who reside in this world presently. For instance, how can the State categorize a foetus with Down’s syndrome as ‘abnormal’ without assigning a special character to the people living in India with this condition. Similarly, where will we stand on the question of ambiguous genitalia. What we need to ask is, who gets to populate this category ‘substantial foetal abnormalities’ and what principles shall be used in doing so.

The entire argument for regulated and legal abortions is premised on the assumption that legal abortions are also necessarily safe. However, the safety of medical procedure is essentially dependent upon the training received by the personnel administering the procedure and the resources used in doing so. One of the biggest problems in India is the lack of trained staff, capable of performing safe abortions. The amendment bill does not provide an answer to this problem. The bill provides neither a solution to the problem of shortage of service providers nor does it provide hope for a greater resource investment in the area of abortions.

Conclusion

The MTPA 1971 was a bold move that made India’s position, with respect to abortion, very clear. It was however far from a very liberal legislation. While allowing for abortions, the act granted a limited and qualified privilege to a very small number of women. It was conservatively liberal. The amendment bill, 2020 is a liberal reformation of the existing act. The amendment not only extends the privilege to a greater number of women it also acknowledges matrimony as a redundant fact in reproductive and child health and it grants greater control to a woman over her body. Though the amendment bill 2020 is a powerful and a welcome step towards finalizing a legislative response to the abortion question it could have been better. A lot has yet been left for the future.

[1] The abortion question was first addressed in the year 1860 when abortion was outrightly criminalized under section 312-316 of the Indian Penal Code 1860. The question was revisited around 100 years later, under the pressure of a global movement for the liberalization of abortion laws. In 1961, the Family Planning Training and Research Centre, Bombay recommended the liberalization of abortion laws. A more prominent push came in the year 1964 when the Indian Parliamentary and Scientific Committee (chaired by Lal Bahadur Shastri) proposed that abortions be permitted as a remedy for the failure of contraceptives. Following this proposal, the Central Family Planning Board (CFPB) called for the setting up of a committee to study the issue and the Health Ministry, in September 1964, went ahead and set up a committee headed by shri Shantilal shah. Shantilal shah was a member of the CFPB. It was the report of this committee, released in 1966, that formed the formal basis of the MTPA. The draft was first introduced in the Rajya Sabha by S. Chandrasekhar (Minister of Health) on November 17, 1969 but could not be passed before August 1971 when the Health Ministry was headed by D.P. Chattopadhayaya.

[2] Medical abortions are performed by administering a combination of mifepristone and misoprostol. A relevant fact is that Misoprostol is an essential drug while Mifepristone is not. This has implication on the availability of the drug in local markets.

[3] Dilation and Evacuation (D&E) and manual or electric vacuum

[4] An unsafe abortion, as defined by the WHO, is a procedure to terminate a pregnancy by persons who are not appropriately trained or a use of a non-recommended method (defined as less safe) or both (defined at least safe)

[5] Another category of IUGR is mixed IUGR

[6] Read Niketa Mehta abortion case.

[7] The bill is pending in the Rajya Sabha

References

Cameron, S. (2018). Recent advances in improving the effectiveness and reducing the complications of abortion [version 1; peer review: 3 approved]. F1000Research. Retrieved from https://doi.org/10.12688/f1000research.15441.1

Gupta, R. (2019, August 27). Abortion in India: Experts call for changes. Retrieved August 28, 2020, from https://www.downtoearth.org.in/news/health/abortion-in-india-experts-call-for-changes

Savithri, C. (1971). Medical Termination of Pregnancy Act, 1971: A study of the legislative process. 21.

Sharma, D., Shastri, S., Farahbaksh, N., & Sharma, P. (2016, March 3). Intrauterine growth restriction – part 1. The Journal of Maternal-Fetal & Neonatal Medicine, 12. doi:10.3109/14767058.2016.1152249

Yokoe, R., Rowe, R., Choudhury, S. S., Rani, A., Zahir, F., & Nair, M. (2019). Unsafe abortion and abortion-related death among 1.8 million women in India. BMJ Gob Health. doi:10.1136/bmjgh-2019-001491

Written by : Umang

Edited by: Debrupa Bhattacharjee

Picture: needpix.com

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