Abortion law amended, but it fails to make a difference

By P Selvi
CHENNAI: Last year, when schools were shut due to Covid-19, 13-year-old Uma (name changed) tagged along with her friend to work at a spinning mill in Erode district. In February this year, when the girl complained of a stomachache, the doctor discovered she was 20 weeks pregnant. It was only then that the girl revealed that a co-worker at the mill from Jharkhand had repeatedly raped her and threatened to kill her if she informed anyone about it.
The girl’s father lodged a police complaint and a case was registered under the Protection of Children from Sexual Offences (Pocso) Act, 2012. He also gave a representation to the government hospital in his district seeking termination of the pregnancy. But the hospital, after about two weeks, informed him that they were not fully functional and to seek medical help elsewhere. Precious time was lost, and the fetus turned 24 weeks.
Uma’s father contacted the district child protection office and the district legal services authority, which enabled him to approach the court under the Medical Termination of Pregnancy (MTP) Act, 1971. The Madras high court directed the hospital to constitute a committee, and after assessing the physical and mental health of the girl, to proceed with the abortion. This was carried out on March 10.
The teenager’s case is not an isolated one. Many girls and women are forced to seek court intervention for termination of pregnancy, including those well within the prescribed gestational period for abortion at the time of being found pregnant because of inordinate delays. On March 25, the MTP (Amendment) Act, 2021, was amended, but it did not alter the framework to bring the interests and dignity of women in these situations front and centre.
Interventions, like in Uma’s case, show the string of pre-existing barriers: Inadequate number of registered health care providers, dearth of facilities, social stigma and lack of awareness. Many women are also under the misconception that spousal and parental consent is required for abortion (legally required only for minors). Additionally, provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, and the Pocso Act, 2012, cause confusion and fear in the minds of medical practitioners performing abortions. So, many end up opting for termination of pregnancy from unqualified practitioners in unhygienic and dangerous conditions, resulting in death and morbidities.
The new law does have some positive changes. It increases the gestational limit for special categories including survivors of rape, and relaxes the requirement of medical opinion from the earlier act. It allows any woman to terminate pregnancies caused by contraceptive failure, regardless of her marital status, earlier restricted to a “married woman or her husband”. But the 2021 amendment does not steer clear from being an exception to the Indian Penal Code that criminalises miscarriage, by emphasising that abortions must be allowed only under specified conditions and for special categories of women.
By specifying categories, it reinforces the state’s power to decide on matters of women’s sexual and reproductive rights. It fails to recognise the agency of a pregnant woman to terminate a pregnancy in accordance with established medical standards. That constitutes a violation of her rights to bodily integrity, privacy and dignity, right to work and right to education.
The inclusion of a state-established medical board to authorise termination of pregnancy also constitutes an intrusion into a pregnant woman’s privacy and autonomy. What essentially is a fiduciary relationship between the woman and her gynaecologist should not be subject to third-party authorisation. Moreover, such a medical board is likely to be located in the state capital, making physical access difficult to many pregnant women. The non-application of gestational limits for termination in cases of substantial fetal abnormalities also reinforces eugenic policies that have historically targeted vulnerable groups.
The right to terminate the pregnancy when it exceeds 20 weeks but not 24 weeks in the case of “such category of women as may be prescribed by rules” is restrictive, and does not reveal the categories of women included in abortion. Lastly in the new law, the confidentiality of a woman stands to be compromised, as any person authorised by law could be privy to her medical records.
Remove third-party authorisations:
Medical and judicial authorisations for termination of a pregnancy violate a woman’s right to equality and amount to genderbased discrimination. They hinder, rather than facilitate, access to reproductive health services.
So far, courts have adopted a case-by-case review and mostly viewed reproductive rights as ‘sacrosanct’ and not as a prerogative of a woman. If their case falls outside the conditionalities laid down under the 2021 law, they would either have to approach the courts, or avail of the services of unsafe health providers, both of which are torturous and degrading.
The new act has failed to incorporate the well-considered judgment of the Supreme Court in 2017 in Justice K S Puttaswamy vs Union of India and others on the right to privacy, which held that a woman’s right to make reproductive choices is a dimension of personal liberty as understood under Article 21 of the Indian Constitution.
Difficulties in availing of abortion facilities have exacerbated during the Covid-19 pandemic with restrictions in movement and access to health care facilities. As an immediate measure, the state could issue directives to the heads of government hospitals to perform abortions without delay, and without insisting on parental and spousal authorisations when they are not required. The Union government should re-examine the MTP Act of 1971 and 2021 in the light of the limitations and enact legislation that would safeguard the rights and freedom of women, rather than focus on protecting the rights of health providers.
(The writer is an advocate at Madras high court)