Despite almost 50 years of the incorporation of the MTP act and the vindication of women's right to abort, abortion still remains a hotly debated and taboo issue in India. The half-a-decade old law is probably the most liberal in the world but is still not free from fallacies. Sadly, it has only turned out to serve a cold shoulder when women are facing killing issues. As per the Abortion Assessment Project (one of the most extensive Indian studies on abortion that lasted from 2000 to 2004), of the total abortions that took place in India, 56 percent were unsafe! Statistically, of the 6.4 million annual abortions, 3.6 million were unsafe. The mortality from these unsafe abortions contributed to up to 13 percent of maternal deaths in the country! So, on Mother's Day 2018, let us talk about women and their right to choose abortion.
As disheartening as this may sound, there are clauses in the act which has helped women destigmatize abortion to some extent. If you are yet not aware of how the capital L supports women's right to seek an abortion, you must know the following conditions which must be met.
It is Legal
How many ever shady adboards you must have read till now that were captioned "Abortion karate", know that abortion is not illegal. It surely is legal in India since 1971. The Medical Termination of Pregnancy Act, 1971, is responsible for the legalization of abortion. However, legally, it can only be performed up to 20 weeks of conception.
Abortion can be performed only under four conditions
The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which legal abortion is performed:
- If continuation of the pregnancy poses any risks to the life of the mother or to her physical or mental health
- If the fetus has any severe abnormalities
- If pregnancy occurred as a result of the failure of contraception (but this is only applicable to married women)
- If pregnancy is a result of sexual assault or rape
You can't choose to abort; only the doctor gets to decide
It is solely at the discretion of the doctor that a woman may or may not undergo an abortion. It is not a right that every woman can exercise solely by her decision. Also, if the abortion is to take place within the first trimester (up to 12 weeks of conception), the woman only needs one doctor to sign off. However, if she exceeds the 12-week bar (from 12 to 20 weeks), she needs two doctors to sign-off.
If you are an adult, you do not need your family's or husband's consent
Often, especially in a country like ours, women are asked to have the consent of their husbands or families before they get to the operative table. However, the MTP Act gives adult women the autonomy to decide for themselves. A doctor cannot ask for anybody’s consent except for the mother's.
The Right to Privacy applies to abortion
Yes, that's true. In a benchmark judgment, the Supreme Court of India said, "A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy".
Times Health conducted a survey where we asked people if they think that women should be given the choice over their bodies to decide if they want an abortion. We got the following results.
While over 80 percent think that women should absolutely be given that right, 6 percent of the participants did not agree. There was a minuscule percentage (8.6 percent) which was against the idea of abortion at any cost.
THE PREVAILING PROBLEMS
Looking at the provisions of the liberal law and comparing it to countries like Vatican city and Chile where abortion for any reason is illegal does give a sense of progress. Also, it is a secular law that does not prescribe to any religious faiths or schools of thought.
However, it is imperative to recognize how even in India, the idea of 'choice' is completely omitted from the act. The liberal act only recognizes situational reasons as valid for abortions and they are limiting in nature to only qualifying women. Women have still not been given the autonomy over their own bodies and in doing so, denied being individuals. They do not hold what can be called the 'right to choose abortion’.
WHY THE 20-WEEK BAR?
As per the MTP Act, abortions can only be carried out till 20 weeks of conception. This rule, when it was incorporated, was put in place in order to prevent the gender prediction testing and hence, sex-selective abortions, which then could only be done post the 20-week mark.
However, what the MTP Act fails to realize now is that with the advancement in technology, this test can now be performed much before. The sex of the baby can be determined as early as seven weeks of pregnancy through a new blood test. It can be predicted around the 10th to 12th week through chorionic villus sampling (CVS). It can also be determined between 15 to 20 weeks by amniocentesis.
WHAT ABOUT ABORTIONS REQUIRED POST THE 20-WEEK BAR?
There are certain situations where any fetal abnormalities or risks to the mother's life come to light after 20 weeks of pregnancy. In such cases, the MTP Act requires the mother seeking an abortion to get approval from the court. However, there have been many cases where the courts give judgment in the negative despite the family wanting the abortion. In February last year, a case was turned down by the supreme court despite the risk of the 26-week-old fetus to be born with Down syndrome. Similarly, a case of another 26-week-old was turned down despite the heart defects that were diagnosed.
Also, in cases involving child assault and underage rape victims, the condition of pregnancy may come to light quite late, usually only when the child develops symptoms. In such cases, a thing that the act failed to take into account, the 20-week ceiling may be close or well past. Such cases are no rarity and in fact are rampant, such as the case of the 10-year-old who had to deliver her rapist's child in Chandigarh last year.
WHAT CAN BE DONE
When we talk strictly medical, doctors say that aborting till 24 weeks of pregnancy is now absolutely safe, owing to scientific advancement. Many doctors even say that abortions today are safe even till much beyond. The law needs to realize this and make the much-needed changes that suit the times and technology we live in.
Also, besides the extension of the legal abortion period limit, many doctors also believe that because abortion is strictly a medical and a personal issue, at any point of pregnancy, termination should solely be at the discretion of the doctors and not the law. Doctors should be the ones who weigh-in and if many qualified doctors opine that it is okay to terminate, so be it. In fact, a medical committee can be set up which solely looks into exceptional cases of such nature. This will prevent the many cases of lags that occur due to our grinding legal machinery. A humanitarian approach is more suitable to the subject than a hard-binding writ.
THE MTP ACT AMENDMENT DRAFT
An amendment was proposed in the MTP Act by the Ministry of Health and Family Welfare in October 2014. The bill proposed certain very valid propositions, such as the extension of the legal abortion limit to 24 weeks, giving the right to legal abortion to every woman despite her marital status, elimination of the need of a second doctor's sign-off beyond 12 weeks and so on. The primary objective of the bill was not just to empower women but to reduce the number of unsafe abortions that are carried out in India (which were sadly more than the number of legal abortions as per the Abortion Assessment Project in 2000 to 2004). The draft did some rounds in the cabinets and to the Prime Minister's office but was stalled.
What we need today is a stronger recognition of women's agency. While 20 weeks pregnant, it is not just insensible to expect women to flock to court but also insensitive and denial to them of the right to their own bodies.