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In News: On July 15th, the Supreme Court agreed to examine the constitutional validity of certain legal provisions that allow abortion only to save the woman’s life or in case of abnormal foetus and allegedly violate women’s right to health, free reproductive choice as well as privacy.
Admitting a writ petition filed by Swati Agarwal, Garima Sekseria and Prachi Vats, the apex court issued a notice to the Centre on their contention that several provisions of the 48-year-old Medical Termination of Pregnancy Act of 1971 imposes severe restrictions on the reproductive choice of a woman, her personal liberty and bodily autonomy.
In their plea, the petitioners have contended that the right to choose whether to conceive and carry pregnancy to its full term or to terminate it was at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health.
According to the UNICEF India and World Bank data,
India has one of the highest numbers of maternal deaths. (45,000 maternal deaths every year or an average of one maternal death every 12 minutes)
Unsafe abortions are the third leading cause of maternal deaths in India.
An update –
Government has initiated the process for an inter-ministerial consultation on raising the gestation period for terminating a pregnancy to 24 weeks, from 20 at present, in case of health risk to the mother or foetus.
The Supreme Court, in 2017, had declined to amend the Medical Termination Pregnancy (MTP) Act which prohibits termination of pregnancy beyond 20 weeks, saying that the issue fell within the legislative realm.
The amendment in the MTP act aims to provide equal reproductive rights and also a provision for unmarried females and widows to undergo legal abortion.
Presently, woman must seek legal recourse if the pregnancy has gone over 20 weeks to terminate the pregnancy.
Due to slow judicial process a pregnant woman is unable to get the abortion done thus pushing her to depend on illegal service providers for termination of unwanted pregnancies
Unsafe abortions: A major concern
For women in India, access to abortion has been marred by extreme stigma, lack of awareness about its legality, unavailability of safe services near the community, and high costs charged by providers. Unsafe abortion practices were the third largest contributor of maternal deaths in India.
While India has legalised abortion by the Medical Termination of Pregnancy (MTP) Act, this privilege is clouded by the fact that unsafe abortions remain the third highest cause of pregnancy-related deaths.
The Lancet Research shows that half of the pregnancies in India are unintended and that a third result in abortion.
Only 22% of abortions are done through public or private health facilities.
Lack of access to safe abortion clinics, particularly public hospitals, and stigma and attitudes towards women, especially young, unmarried women seeking abortion, contribute to this.
Doctors refuse to perform abortions on young women or demand that they get consent from their parents or spouses despite no such requirement by law. This forces many women to turn to clandestine and often unsafe abortions.
The Medical Termination of Pregnancy Act, 1971 provides for termination only up to 20 weeks. If an unwanted pregnancy has proceeded beyond 20 weeks, women have to approach a medical board and courts to seek permission for termination, which is extremely difficult. The MTP Act is long overdue for a comprehensive reform.
Issue: Pro-choice & Pro-life
Pro-choice: are proponents who support choice of child bearer and hence support the cause of abortion at will.
Pro-life: are proponents who support life in consideration i.e. the foetus which is considered life from the women’s womb itself.
In India, pro-life versus pro-choice debates are confined primarily to academia, as the abortion narrative has been determined by the Medical Termination of Pregnancy (MTP) Act.
Pro-Choice:
This pro-choice endowment was a need based public health strategy aimed at the alarming increase in the population growth before the 1970s.
It was also targeted towards preventing maternal deaths from illegal abortions, carried out by back-alley abortionists. India was the first country to launch a family planning programme in 1952.
The idea of this programme was to promote the use of contraceptives to delay or space out a pregnancy.
Whatever the family planning programme has tried over the years through different marketing strategies has only made a small dent.
Sterilisation remains the permanent method of contraception, after she or the family has decided on the desired number of children.
Unfortunately, legalised abortion has become a convenient standby, as a woman can cite contraceptive failure to abort an unwanted pregnancy.
Beyond the actual cases of true contraceptive failure, the easy access to abortion services has perhaps promoted a certain amount of irresponsibility, with women’s rights often over-riding discussions on the rights of the unborn child.
Misuse of Pro-choice:
The next saga in India’s abortion narrative was the mis-utilisation of the pro-choice endowment provided by the MTP Act.
Son-preference saw voiceless women being coerced to determine the sex of the baby. The upsurge of selective abortion of female foetuses was accompanied by an explosion of imaging technology.
Indian towns without life-saving healthcare services invariably have at least one ultrasound clinic.
The profusion of ultrasound clinics and sex-selective abortion hastened the decline of the sex-ratio. So alarming was the decline that the Pre-Conception and Pre-natal Diagnostic Techniques Act (PCPNDT) had to be legislated.
Pro-choice versus Pro-life:
The pro-life and pro-choice movements primarily come into conflict on the issue of abortion.
The pro-life movement argues that even a non-viable, undeveloped human life is sacred and must be protected by the government. Abortion must not be legal according to this model, nor should it be practiced on an illegal basis.
The pro-choice movement argues that in pregnancies prior to the point of viability – a point at which the fetus cannot live outside the womb –the government does not have the right to impede a woman’s decision to terminate the pregnancy.
The court has observed that in the case of pregnant women, there is a “compelling state interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified are fulfilled.
But from a women’s rights perspective, should not a pregnant mother have the right to decide whether to go through full-term when there is even the slightest chance of a foetal infirmity and not “substantial foetal abnormalities”?
It is fair to state that no woman who voluntarily chose to get pregnant is likely to seek an abortion unless there are compelling circumstances. Should not the wishes and desires of the person who will be the caretaker be considered?
We need to urgently address this –
First, recognise a woman’s right to exercise her choice and protect her by amending the Indian Penal Code to decriminalise abortion for the woman.
Second, support and provide last-mile access and availability of safe abortion by widening the provider base as proposed by the pending amendments to the MTP Act.
Third, acknowledge the termination of pregnancies with major abnormalities as a part of standard medical care any time in pregnancy as was traditional practice, without having to seek legal exception for each case.
Fourth, further grounds should be incorporated for the abortion – for example it should be extended to 24 weeks and not just 20 weeks as other abnormalities may surface then.
Finally, identify and avoid potential conflation of the MTP Act with the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act that results in stigmatisation of all doctors providing abortions to ensure women are not denied abortion.
Conclusion
Awareness amongst women is of paramount importance.
The judiciary and lawmakers need to maintain a secular outlook and strive to ensure that the women citizens of this country have equal citizenship rights in consonance with the Constitution and with accepted international covenants on human rights. These include a right to life for the woman, as also a right to dignity and a right to benefit from scientific progress. Religion and other traditional frameworks are inherently imbued with patriarchy and cannot be used by a secular state to direct its laws and policies.
Political parties, which also represent India’s women, have an obligation to take forward the debates on reproductive rights, equality, and access to abortion in political debates as well as in framing laws and policies.
The responsibility also lies with civil society and development actors to bring up these issues for public debate and in demands. The silence around unsafe abortions is leading to deaths of women and hides important problems that lie at the intersection of these concerns, such as the formidable barriers for adolescent girls to access reproductive health services, including abortion services.
Access to legal and safe abortion is an integral dimension of sexual and reproductive equality, a public health issue, and must be seen as a crucial element in the contemporary debates on democracy.
Connecting the Dots:
Will liberalizing abortion law help reduce the high number of unsafe abortions in the country or will it lead to more sex election abortions?
Is liberalizing the law enough? What are the steps Government should further take?
Differentiate between the terms ‘legality’ and ‘legitimacy’ of a decision with the help of suitable examples.
What do you mean by the terms pro-life and pro-choice. Discuss the deabte over it in Indian context
