Posted by Dipika Jain

Abortion in India is regulated by the Medical Termination of Pregnancy Act, 1971 (MTP Act), permitting abortions only up to twenty weeks under prescribed conditions and circumstances. Section 3 of the Act states that a pregnancy may be terminated by a medical practitioner if they believe that continuing the pregnancy would involve a risk to the woman’s life; or gravely injure her physical or mental health. Beyond 20 weeks, abortions are only permitted where the medical practitioner believes that it is immediately necessary to save the woman’s life. 

Abortion in India is a qualified right that only married women in cases of contraceptive failure, rape, or foetus ‘abnormality’ can seek. The MTP Act is archaic both in terms of legal and constitutional jurisprudence as well as technological advancement. In 2014, the Ministry of Health and Family Welfare unsuccessfully proposed an amendment which could have allowed for abortion upon request until 12 weeks, and in consultation with a doctor up to 24 weeks.

Most recently, on 17^th March 2020, the Medical Termination of Pregnancy (Amendment) Bill, 2020 (‘the Bill’) was passed in the Lok Sabha with little debate or deliberation. During the legislative debate, the Bill was almost unanimously hailed as a women’s rights legislation. Feroze Varun Gandhi spoke of the Bill as “one of the most progressive pieces of legislation” that he had come across in his 11-year tenure. He responded with an “emphatic yes” to the question of whether women should have total control over their bodies.

The Bill was also praised by several members for increasing the gestation limit for termination of pregnancies from 20 to 24 weeks. Dr. Shrikant Shinde stated that India was one of the first countries to ‘legalise’ abortions, He congratulated the government for these proposed amendments, claiming that India would now “stand amongst nations with highly progressive laws“, which allow abortions on therapeutic, humanitarian and social grounds. 

Unfortunately, the Bill does not recognise a pregnant person’s autonomy and bodily integrity, but instead maintains the doctor-centric approach of the MTP Act. Abortion under the Act (once amended) will not be on the request of a pregnant person, but still remain conditional on authorisation by a doctor. Further, the increase in gestation limit is only for “women in certain categories“, and the Bill only allows for abortions without any upper gestation limit for foetuses with ‘abnormalities’, thereby promoting the ableist rationale of the State.

It fails to consider that the need for abortions post-24 weeks may arise due to a change in circumstances for the pregnant person – which could be due to domestic violence, separation from a partner, or financial emergencies, any of which may result in a pregnancy becoming unwanted. Further, the Bill mandates the constitution of Medical Boards, comprising five specialists in every state and union territory to determine if pregnancies that have advanced past 24 weeks can be terminated, provided there is diagnosis of severe foetal ‘abnormalities’. 

We conducted a study at the Centre for Justice, Law and Society to analyse the feasibility of setting up Medical Boards as envisioned by the Bill. We looked at the district-wise availability and accessibility of specialist doctors across all Indian states, and the ramifications of the paucity across rural, urban, and tribal regions. Our analysis draws on reports pertaining to healthcare availability across India, focusing on access to abortion services. The report observes that given the sweeping shortages of healthcare professionals and specialists across India, poor public health infrastructure and healthcare funding, unsound privatisation policies, and data gaps for doctor availability, requiring specialist doctors to sign off on a procedure as common as abortion is impossible – and will push pregnant persons further towards unsafe abortions.

For over 15 years, India has spent close to 1% of its GDP on healthcare, with India’s 2019 public expenditure on health standing at a shockingly low 1.28% of the GDP. The lack of safe, reliable, and easily accessible public healthcare facilities in India have led to high out-of-pocket (OOP) expenditure for medical needs, including urgent needs such as abortions and associated treatments. It has pushed persons to rely largely on costly, unaffordable private facilities whose prices are not adequately regulated by the state. As a result, the poor have been abandoned to ‘distress financing’ of medical care by selling off personal or ancestral assets and borrowing from predatory moneylenders, etc., which is a major cause of impoverishment in India. 

Our study shows that across Indian states and Union Territories, there is nearly an 80% shortage in the availability of specialists. Some states such as Tamil Nadu, Arunachal Pradesh, and Gujarat recorded a near complete absence in the availability of certain specialists, especially in rural areas. In rural North India, there is on average an 84.2% shortfall in obstetricians-gynaecologists, 68.76% shortfall in paediatricians, and a 74.5% shortfall of radiologists. Rural South India fares similarly, with a 57.2% shortfall in gynaecologists and obstetricians, a 61.4% shortfall in paediatricians and a 68% shortfall in radiologists. In Scheduled Areas as well, such as in parts of Himachal Pradesh, there is an abysmal shortfall of specialists. 

Although there were many data gaps pertaining to Union Territories, our analysis of data from the Rural Health Surveys from 2015 to 2019 shows that, on average, India has faced an acute shortfall of at least 80% in the availability of obstetricians-gynaecologists, paediatricians, and radiologists.

The table below presents the compiled data for all states: 

The constitution of Medical Boards is a violation of the rights of persons seeking abortions and highly impractical in the current crumbling and inadequate healthcare system. Most rural locations have a limited number of doctors to address primary healthcare needs, let alone an array of three or more different specialists. Marginalised persons such as Dalits, Adivasis and others will be unable to access these Boards even if constituted at the District Level. This is an urban-centric flawed rationale of the State.

When gynaecologists are equipped to perform abortions after 24 weeks, why are paediatricians, radiologists, sonologists as well as other members (that the State or UT can designate) required to constitute the Board? Who will be responsible for the delays? What is the accountability mechanism? How will pregnant persons from remote areas travel to seek permission from these boards?

Also read: Abortion Amid Lockdown: How Can The State Take Responsibility?

It is evident that setting up such Boards is not only impractical but also invasive and violative of the rights to privacy and dignity of pregnant persons, upheld by the Supreme Court in Constitutional Jurisprudence like Suchita Srivastava – where the court noted that a woman’s right to make reproductive choices is a dimension of ‘personal liberty’ under of the Constitution of India.

The Puttaswamy judgment also held that reproductive autonomy, bodily integrity, and dignity, are essential ingredients of personal liberty under the Constitution and in Joseph Shine v Union of India, the right to sexual autonomy and privacy was declared a right protected by the Constitution. In taking significant steps in recognising fundamental rights to privacy, dignity, and bodily and sexual autonomy, courts have made it clear that reproductive rights are to be considered as fundamental rights in India. 

Notably, Medical Boards were never conceptualised by the MTP Act, 1971, but in fact, evolved as a practice of the judiciary. The MTP Act only allows for abortions after the 20-week limit to save the life of the pregnant person. However, hundreds of cases came up in recent years where pregnant persons approached courts seeking termination of pregnancy after 20 weeks and a few even before 20 weeks.

The courts did not clearly lay down the law on this issue, instead choosing to appoint ad-hoc medical boards in each case to deliver ‘expert assessments’ on health risks the abortion would pose to the pregnant person, and whether the foetus would have anomalies. These ad-hoc boards have been functioning without clear mandates or guidelines; their decisions have thus been inconsistent and often in breach of the MTP Act. 

Medical Boards clearly entail third party authorisation for abortions to be performed under certain circumstances under the Bill. The problems inherent in third-party authorisation of pregnancies have been highlighted at the international level. The UN Human Rights Special Procedures Working Group on the Issue of Discrimination against Women in Law and in Practice released a statement in 2017 asserting that any legislative requirements for abortion should not cause delays that would prevent the carrying out of termination before the pregnancy becomes too advanced.

Similarly, the Committee on the Elimination of Discrimination against Women has raised concerns about third-party authorisation requirements, and the World Health Organisation has acknowledged that third-party authorisation requirements undermine women’s autonomous decision-making.

Thus, this requirement of Medical Boards for diagnosing foetal ‘abnormalities’ is unnecessarily bureaucratic, can be extremely intimidating to people desiring abortions, and many individuals may resort to unsafe abortions instead. With diverse composition of the Boards as well as a lack of uniform jurisprudence on abortions, it will be impossible to reach a decision quickly, which may result in pregnancies reaching advanced gestational age before termination is permitted, if at all. 

Also read: Abortion During The Pandemic: Whose Crime Is It Anyway?

These restrictive MTP laws, the gender stereotypes upon which they are based, and the requirement for judicial discretion have resulted in a situation where pregnant persons across the country are being denied basic healthcare services. It is imperative that the MTP Bill 2020 is sent to the Standing Committee for reconsideration and is amended in line with a rights-based framework, where the decision to terminate their pregnancy lies with the pregnant person, in consultation with their doctor, and without any third-party authorisation.

Dipika Jain is Professor of Law, Vice Dean (Research) and the Director of the Centre for Justice, Law and Society (CJLS) at Jindal Global Law School (JGLS), India. Her teaching and research is at the intersection of Law and Marginalisation. You can find her on Facebook, Twitter and Instagram. You can also find CJLS on Facebook, Twitter and Instagram.

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