Amendments to abortion law are welcome: For the amendments in abortion law to be effective, medical facilities need to be expanded and women have to be made aware of their rights.

Source: Indian Express dated 10.02.2020

-- Shailaja Chandra (Former Secretary, Department of AYUSH, Government of India, and Former Chief Secretary, Government of Delhi)

The proposed Bill seeking to amend the Medical Termination of Pregnancy Act (MTP, 1971) after nearly half a century is to be welcomed. Once enacted, the upper limit for terminating special kinds of pregnancies will go up from 20 weeks to 24 weeks — this is a recognition that certain physical and mental conditions can only be identified after the fifth and sixth month of pregnancy. This approach is in line with what seven other countries — Canada, China, the Netherlands, North Korea, Singapore, the United States, and Vietnam — follow. It is based on the yardstick of “foetal viability” — the capability of the foetus to live outside the mother’s womb. The 1971 law had forced vulnerable and traumatised women in an advanced stage of pregnancy to give birth to a compromised child or seek legal redress, an avoidable process that was fraught with delays and uncertainty.

The much bigger reason to commend the proposed amendment is its recognition that even unmarried women are entitled to seek legal abortion — as a right. But this brings to the fore several ground-level issues. First, the annual number of abortions in the country is massive — over 15 million, constituting 33 per cent of the total annual pregnancies in the country. Both in urban and rural areas, there is overwhelming reliance on medical termination (as opposed to surgical methods) by ingesting pills from a kit over one to three days.

In 2015, Lancet Global Health published a study, jointly conducted by researchers at the International Institute for Population Sciences (IIPS), Mumbai, the Population Council, New Delhi and the New York-based Guttmacher Institute, which showed that a whopping 81 per cent of women relied on medical termination.

The 24-week modification will help a niche group of women who discover foetal abnormalities after 20 weeks or belong to defined vulnerable groups. Such women have access to doctors. But there are concerns about those who have no access to doctors — millions of rural women who have never had access to a safe and transparent route to abortion. Victims of incest and rape have to resort to unsafe abortions to maintain secrecy and even married women become desperate to end an unwanted pregnancy for economic reasons.

Given the social and cultural milieu in the country, it is natural for women to rely on informal providers to access abortion pills. If these pills don’t work, the woman goes to or is taken to an unqualified practitioner who usually administers an oxytocin injection, performs a D&C (dilation and curettage) and advises consulting a doctor if bleeding persists. The doctor uses a suction apparatus to evacuate the uterus. But in rural areas, where are the doctors? The procedure costs anything between Rs 2,000 in peri-urban areas to around Rs 10,000 in cities. The distress of a woman from a rural area, who requires an abortion, can only be imagined.

Failure of contraception is a valid reason to seek termination of a pregnancy. But more than the failure of contraception, the major reason for unwanted pregnancies is inadequate information about the routes of dependable contraception and care. Most families in rural areas believe that sterilisation is the only solution to avoid pregnancy because in India, people do not have adequate knowledge and lack access to reversible methods like IUDs and injectables. Rural Indian women are far behind their counterparts in Bangladesh, Sri Lanka and Indonesia when it comes to awareness of these methods. State family planning departments place too much reliance on the village level workers, ASHAs, who provide condoms and pills to village homes. But there is documentary evidence that these condoms and pills are used only intermittently. After pregnancy, an unsafe abortion is often the way out — the third most important cause of maternal mortality. Availability of improved contraceptives and easy access to friendly and competent staff is a big gap which needs to be filled.

In urban areas, medical termination kits are available over the counter on prescription. In unorganised markets, it can be bought without a prescription much like several other Schedule H drugs. Are such over-the-counter sales permissible? Are prescriptions needed to purchase such drugs? There are conflicting responses to such questions from consumers — even those in Delhi. For consumers to understand their rights, an advisory in simple language must be displayed outside chemists’ shops.

Once the law permits abortion on demand, the service must be provided free in government-run facilities. Currently, there is a shortage of trained staff and inadequate supplies of both medical kits and suction apparatus in most PHCs. This must improve for the law to be effective. A directory of practitioners authorised to give prescriptions and undertake abortions at specified locations must also be freely available.

Next is the question of differentiating between two abortion-related laws. Entitlements under the existing MTP Act 1971 are much less known than the provisions of the sex selection law (PCPNDT). The two are often confused unnecessarily, exposing women to suspicion, questioning and patronisation. Once the law is amended, it will have to be explained in regional languages, and in a simple manner, to obviate the present state of ignorance, and hubris.

The Constitution guarantees equal protection under law. Universal access to sexual and reproductive health is embedded in the charters of the International Conference on Population and Development,1994 and the SDGs. India is a signatory to both. Unless every woman in the reproductive age group has the ability to access what the proposed law intends it will remain only a good intention. Governments have enabled patients from remote villages to benefit from cataract operations and use institutional facilities for deliveries. Medical and surgical abortions must be handled in a similar way for women to be truly empowered.

Explained - Changes in 1971 abortion law, and why India feels it necessary

Source: Indian Express dated 01.02.2020

-- Abantika Ghosh

A look at what the Medical Termination of Pregnancy (Amendment) Bill, 2020 says, and why it was brought in.

Earlier this week, the Union Cabinet cleared a long-pending change to the Medical Termination of Pregnancy Act, 1971 that raises the legally permissible limit for an abortion to 24 weeks from the current 20 weeks. Following the efforts of the Health Ministry, the change also accepts failure of contraception as a valid reason for abortion not just in married but also in unmarried women.

A look at what the Medical Termination of Pregnancy (Amendment) Bill, 2020 says, and why it was brought in:

What changes does the Medical Termination of Pregnancy (Amendment) Bill, 2020 bring in?

It increases the maximum permissible gestation age for abortion to 24 weeks, with the proviso that for pregnancies that are between 20-24 weeks opinions will be required from two doctors rather than one. This has been specially done keeping in mind “vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc”.

The upper gestation limit will not apply in cases of substantial foetal abnormalities diagnosed by a Medical Board. The composition, functions and other details of the Medical Board are to be prescribed subsequently in Rules under the Act. This clause has been put to keep such cases out of courts; the government deemed a Medical Board should examine the various aspects of the case and take a call.

According to a government statement: “The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarianor social grounds… It is a step towards safety and well-being of the women and many women will be benefited by this. Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.”

The original draft of the Bill had included the contraceptive failure clause only for married women, which, the Health Ministry has now felt, would have left unmarried women, on whom social pressures to abort are more acute, at the mercy of quacks. That is why in 2016, it sent a recommendation that failure of contraception should be accepted as a legal reason to abort not just in married but also unmarried women. It was accepted.

How overdue are the amendments?

A national discourse on amendments needed to the MTP Act, 1971 in view of advancement of medical technologies dates back to 2008 when Haresh and Niketa Mehta petitioned the Bombay High Court to allow them to abort their 26-week-old foetus who had been diagnosed with a heart defect. It made the point that pre-natal diagnosis of defects had come a long way – and some defects could be revealed after 20 weeks has passed. The Mehtas’ plea was turned down on expert advice. But the court’s observation that only the legislature could address the demand for change in the legal limit meant that India had started the process of re-evaluating provisions of the Medical Termination of Pregnancy Act, 1971. Niketa Mehta, incidentally, had a miscarriage soon after the verdict.

Since then, many cases have gone up to the Supreme Court asking for permission to abort beyond the legally permissible limit, often involving victims of sexual crimes.

Why is the change in law significant?

Despite a sustained government push over years, contraceptive use in India is not very popular. According to a 2018 study by the Guttmacher Institute, 50% of pregnancies in six of the larger Indian states — Assam, Bihar, Gujarat, Madhya Pradesh, Tamil Nadu and Uttar Pradesh — are unintended. Data from the National Family Health Survey 4 show that just 47.8% of couples in the country use modern contraceptive methods; only 53% use any method at all. It found that 55% pregnancies in Assam, 48% in Bihar, 53% in Gujarat, 50% in Madhya Pradesh, 43% in Tamil Nadu and 49% in Uttar Pradesh are unintended. The number of pregnancies ranged from 1,430,000 in Assam to 10,026,000 in Uttar Pradesh. Estimation of unintended pregnancies is important because many of them result in abortions and the availability of cheap and safe abortion services is one of the indicators of a robust health system.

According to a 2016 study published in The Lancet by the Guttmacher Institute and the World Health Organization, an estimated 56 million abortions took place globally each year between 2010 and 2014. In 2015, a study in The Lancet Global Health, also by Guttmacher Institute and IIPS, estimated that 15.6 million abortions were performed in India in 2015. This translates to an abortion rate of 47 per 1,000 women aged 15-49, which is similar to the abortion rate in neighboring countries.

Defend the woman’s autonomy, right to choose: In theory, India’s position on abortion is progressive. In practice, the law is flawed and punishes women

Source: Hindustan Times dated 20.11.2019

-- Anubha Rastogi (Lawyer and Member of Pratigya Campaign Advisory Group) and Raunaq Chandrashekar (Public Policy Consultant)

The MTP Act ignores the socioeconomic implications of childbirth, placing women under intense physical, mental, and social duress.
India’s progressive stance on abortion is not practical as it doesn’t allow women the autonomy to decide. The subjectivity of the Medical Termination of Pregnancy (MTP) Act, inconsistent enforcement, and a tendency for enforcers to absolve themselves of responsibility have resulted in a redundant system. The legal system has failed to address what is a matter of human rights. Our analysis of 194 writ petitions heard by the Supreme Court (SC) and the high courts between June 2016 and April 2019, filed by women seeking medical termination of their pregnancy, identified several systemic issues that lead to unpredictable and inconsistent outcomes. The length of the gestation period and the opinion of the medical boards were common themes in cases of rejection. Neither factor considers the petitioner’s medical report or the rejection’s impact on the woman beyond the subjective interpretation of the Act.

In the 20 cases overseen by the SC, MTP was permitted in 15 instances and rejected in five. All these cases involved pregnancies that had crossed 20 weeks. Of the five cases rejected, two pregnancies were due to rape, one of whom was a minor. In the case of the minor, the SC relied on the opinion of the medical board that a continued pregnancy was safer than termination. In the second case of rape, where the gestation period exceeded 36 weeks, the court denied the MTP request. It’s important to note here that the doctor had earlier denied the woman MTP on account of her being HIV positive, despite the fact that she was only 17 weeks into the pregnancy — which is well before the 20-week limit set by the court. It forced her to go to the high court — which again rejected the plea — and then to the SC, by which time, the gestation period had reached 36 weeks. The three other rejections were cases of foetal abnormalities, in which the court’s decision, again, was driven by the opinion of the medical board.

The Act treats MTP as a public health issue, focusing more on its impact on family planning and potential criminal proceedings against medical professionals, while ignoring women and their right to choose. By giving medical professionals the space to be discretionary, the law often allows doctors to deny requests even before the permissible 20 weeks if the request is not accompanied by a court order. An inefficient process easily takes these cases past the prescribed gestation period, causing distress. The reliance on medical boards is another sticking point. Women who approach the court tend to do so armed with a medical opinion, and since the concept of the medical board was never part of the Act, their influence on the decision-making process makes things complicated.

The problem with the Act is one of both legality and legitimacy. There have been multiple instances of attributing personhood to the foetus, as evidenced by the use of phrases like “life of the foetus”, opening up the implementation to moral subjectivity. The guidelines to implement the law must be more explicit and consistent across states, minimising the scope for discrimination masquerading as discretion. Furthermore, there is a clear need for the Act to keep pace with the times, an attribute it lacks on many counts. It cannot continue to prioritise the decision of the registered medical practitioner (RMP) based on outdated standards of medical risk that override every technological advancement that has reduced the risk associated with MTP. By adopting a narrow definition of physical health, the Act, in some instances, also ignores the socioeconomic implications of childbirth, placing women under intense physical, mental, and social duress. The Act also contradicts the SC’s recognition of a woman’s autonomy regarding her body, privacy, and live-in relationships.

Given the advancements in technology, the restrictions on the term should be increased to 24-26 weeks. More importantly, cases under 20 weeks should be inadmissible in court and directed to registered medical professionals, with provisions for legal action in the event of refusal. Noting the trauma associated with assault, MTP must be available to all pregnancies in these circumstances, irrespective of the constraints in the Act. A discussion about women empowerment should be accompanied by a thorough assessment of the subjects’ rights. By taking a medical stance at the cost of a legal perspective, the courts are denying women a facility that should be easy to access and easier to implement.

Criminalisation of even consensual sex between adolescents obstructs access to safe abortion for girls

Source: Times of India dated 19.10.2019

-- Vrinda Grover (Advocate, Supreme Court of India)

Unsafe abortion is the third leading cause of maternal mortality in India, leading to about 10 deaths every day. ‘The incidence of abortion and unintended pregnancy in India, 2015’ study records that of the 15.6 million abortions in 2015, only 22% were conducted in health facilities, whereas an overwhelming 78% abortions were done outside health facilities. Adolescent girls, in the age group of 16-18 years, are left at the mercy of life-threatening pregnancy termination methods. A 2010 facility based study discloses that 20-30% of abortion seekers were unmarried young women and adolescent girls; and 16.7% of them were victims of sexual abuse.

Significantly, this life endangering vulnerability is abetted by the law. Section 19(1) of the Protection of Children from Sexual Offences (POCSO) Act stipulates mandatory reporting of all sexual offences against a child to the law enforcement authorities, and failure to report the same entails punitive consequences. This blanket legislative compulsion to inform authorities, makes no exception for adolescent girls nor for health professionals, thereby jeopardising the life and reproductive health of adolescent girls.

NFHS-4 (2015-16) data confirms that adolescents are sexually active in India. The legislative diktat of POCSO treats any sexual activity with a person under 18 years as a crime. Even consensual sex between adolescents is criminalised. This strictly penal approach rejects the evolving sexual capacities and consensual sexual interactions between adolescents. Ironically, the Juvenile Justice law recognises 16-18 year-olds as “deliberative intentional adults” to prosecute them as adults for heinous crimes.

The 1971 Medical Termination of Pregnancy Act governs the circumstances under which comprehensive abortion can be provided. To provide abortion services to a girl under 18 years, the law requires the written consent of a guardian but casts no obligation on the doctor to inform the police. POCSO, however, superimposes mandatory reporting on health professionals, placing physicians and psychiatrists in a particularly conflicted position, about how and when the doctor must inform the police.

Rule 5 of POCSO prescribes that the doctor rendering emergency medical care shall not demand any prior legal requisition; shall protect the privacy of the child and shall attend to the needs of the child including advice on pregnancy and emergency contraception. The Monitoring Guidelines state that it would suffice to give information to the police official attached to the hospital, and a medico legal certificate made to the police. The guidelines also state that providing medical care is the first duty of health professionals, while reporting is a secondary duty.

Doctors providing abortion services are confronted with a professional and ethical dilemma. The primary duty of the doctor is to provide medical treatment and the efficacy of this treatment rests on maintaining confidentiality and trust of the patient, underpinned by securing informed consent. Thus, doctors have to meet the competing demands of the law and their professional obligation to provide healthcare.

Doctors have reported that the POCSO statutory directive has a chilling effect in providing healthcare. Many doctors continue to prioritise their duty by first providing safe abortion services and also comply with the law by informing through either an MLC, or a subsequent report to the police. However, doctors also report many instances where adolescent girls seeking pregnancy termination have abruptly left upon learning that the police would be compulsorily informed. The situation is more egregious when the pregnancy is caused by sexual assault within the family and the survivor is unable and unwilling to approach the police. Irrespective of the marital status of the adolescent girl seeking abortion, the doctor is required to inform the police, as law deems them all to be a consequence of rape.

There can be no dispute with the objective of ending child sexual abuse and there is merit in imposition of mandatory reporting in institutional settings. However, in the context of access to safe abortion, universal mandatory reporting, is a blunt instrument, not in the best interest of the health or autonomy of adolescent girls.

Let’s pause and consider the state of the criminal justice system that this mandatory reporting will trigger. The Supreme Court on July 12, 2019, registered a suo motu writ petition titled, ‘In Re: Alarming rise in the number of reported child rape incidents’. Responding to the inordinate delay in the investigation and conclusion of POCSO trials, the court issued directions. Is it surprising then that the criminal justice system does not inspire confidence in the victims of POCSO offences?

The criminalisation of all sexual activity between adolescents under POCSO, coupled with mandatory reporting directive, operates as a barrier for adolescent girls accessing safe abortion services. Respecting “the best interests of the child” mandate, POCSO should prioritise enabling adolescent girls to access safe abortions and not fetter health professionals with mandatory reporting.

Amend The MTP Act

Source: The Times of India dated 29.07.2019

Amend The MTP Act: Current version is archaic and causes needless suffering to pregnant women

Nikhil Datar (The writer is a gynaecologist and health activist)

When a woman by her own free will decides to terminate her pregnancy, it is called as an abortion. Before 1971, abortion was a crime in India. Women had no choice but to undergo illegal abortions due to which many women died or suffered per manent damage.

To prevent such damage to women’s health, Parliament took a bold decision and passed the “Medical Termination of Pregnancy Act” in 1971. This law allows a woman to undergo an abortion only under certain conditions. A woman can seek abortion if the doctor confirms that the fetus in the womb has serious abnormality or if the continuation of pregnancy could cause mental or physical harm to the woman. The law allows a woman to undergo abortion only till 20 weeks. Despite this law, 13 women die every day due to unsafe abortions carried out illegally.

By conducting tests like sonography between three to six months of pregnancy, the doctor can detect abnormality in the fetus. When a pregnant woman learns that death or extremely poor quality of life (after birth) is inevitable, she may want to abort the fetus. In India, 26 million women are pregnant at any given time. Most of them are dependent on the healthcare facilities provided by the state. It is quite a common occurrence that by the time a woman learns about the problem and takes that difficult decision of abortion, her pregnancy has gone past the 20 weeks cutoff permitted by the MTP Act.

In 1971, techniques for termination were primitive and risky. Today, doctors can safely induce the process of abortion mimicking natural delivery at any stage. Yet the doctor has no choice but to refuse such an abortion if the pregnancy has crossed the arbitrary cutoff of 20 weeks. Carrying it out is a criminal offence for which the woman and the doctor both could be jailed. There is a chance that such a woman may undergo illegal abortion in the hands of a quack, risking her own life.

I challenged this illogical provision in 2008 by filing a case, Nikhil Datar vs Government of India. Since this milestone case, i have helped more than 90 women seek justice. In these cases the courts set a committee of doctors from government hospitals. The medical knowledge that late abortion is safe, seriousness of the fetal abnormality along with the helplessness of the woman convinced the committees to give reports in favour of termination.

The judges took bold decisions, read beyond the letter of the law and allowed these late abortions. Despite this, courts can only take a case by case approach. Thus the systemic problem continues to exist unless Parliament amends the MTP Act. Unfortunately the Centre and state governments have been passive spectators for more than a decade now.

All these cases where courts allowed termination of pregnancy beyond 20 weeks were successfully and safely handled. Most of them were done in government hospitals. In most of these cases, the process of abortion was induced using medications and the women aborted through the vaginal route (like normal delivery). However some ethical questions have come up. Some of the fetuses were born with signs of life especially when the gestation was beyond 24 weeks. This led to a confusing situation.

In a naturally occurring severely premature birth, the parents are counselled about poor prognosis. If parents wish and consent, comfort care or palliative care is offered. But what does one do in a case of termination of pregnancy?

In order to avoid these complex situations, doctors in the UK and other Western countries carry out a medical procedure that stops the beating heart before the abortion is induced. Indian doctors do the same procedure, albeit before 20 weeks. When courts allow late terminations, it is unclear if doctors can stop the beating heart before termination is conducted.

Although the judiciary has been very sensitive and swift in disposing such cases, it still amounts to delay. The woman has to go through a lot of hardships to reach the high court. The cases that reach courts are only the tip of the iceberg, the problem is a lot larger in magnitude. There will be thousands of such women in the country who have no scope of even reaching the court for legal remedy.

Thus the only solution to the problem is amending the MTP Act through Parliament. The MTP Act needs to be amended immediately in line with modern medical advances and international ethical principles. The archaic and arbitrary cutoff of 20 weeks needs to be removed.

Having said that the safety of women and possibility of abuse of law also needs to be kept in mind. The state should identify a separate cadre of healthcare facilities to provide safe terminations after 20 weeks of pregnancy. There is an immediate need to clarify the legal status of an unborn fetus when termination is being considered. Moreover, the state needs to create elaborate working guidelines for doctors while they undertake such terminations. Meanwhile in the short term, the state can pass an ordinance with immediate effect to bring about the said changes.

Unless the law is amended keeping pace with modern medicine, the dignity and welfare of women who have resorted to such a desperate measure to safeguard their and their unborn fetuses’ quality of life cannot be upheld.