Home / Politics / Policy /  Is just changing the law on abortions enough?

To have or not have a child should be a woman’s prerogative. Unfortunately, in India, this is often not the case. The law, the family, society and doctors all have a say in whether, how and under what circumstances a woman may abort a child.

Under the Medical Termination of Pregnancy Act, 1971 (MTP Act), abortion is a qualified right. The procedure can only be performed by a registered medical practitioner at a registered MTP centre for up to 12 weeks of pregnancy. Beyond 12 weeks and up to 20 weeks, the opinions of two medical practitioners are required.

The grounds on which abortions are allowed are also specified in the Act. An abortion is permitted only if continuation of the pregnancy poses a substantial risk to a woman’s life or her physical or mental health or if a pregnancy is caused by rape, or if the foetus is suffering from physical or mental abnormalities and if the pregnancy is due to the failure of contraceptives (applicable only to married women).

An abortion cannot be conducted merely at a woman’s request—an indication of the state of sexual and reproductive rights of women in the country.

However, proposed amendments to the MTP Act, once approved, are set to make the law much more liberal. The draft MTP (Amendment) Bill, proposed by the health and family welfare ministry in 2014, recommends replacing the term “married women" with “all women" and substituting “husband" with “partner" in the contraceptive failure clause, which would help women get access to safe abortion services, irrespective of their marital status.

The bill also proposes a change in the definition of who can conduct abortions by replacing “registered medical practitioners" with “registered healthcare providers", a term that includes nurses, auxiliary nurses, midwives, and practitioners trained in Indian Systems of Medicine such as ayurveda, siddha and unani.

The bill also aims to extend the permissible period for abortion from 20 weeks to 24 weeks if the healthcare provider believes the pregnancy involves a substantial risk to the mother or the child.

The draft amendment bill to the MTP Act is currently pending before Parliament.

Emails and calls to Vandana Gurnani, joint secretary in the ministry of health and welfare in charge of reproductive, neonatal, and child and adolescent health, remained unanswered.

The question is, whether these amendments to the law will bring about a dramatic change in the way abortions are conducted in India. Enforcement of the law and a pro-women’s choice social set-up are crucial for such a change to take place. It is also important for the government to ensure that a liberal law does not lead to more sex-selective abortions.

It is exceedingly difficult to enforce the MTP Act as people are not aware that they should go for abortions only to MTP-registered centres and a section of doctors continue to conduct medical abortions without getting themselves registered, says Dr Asha Advani, special officer (family welfare and maternal child health), at the Brihanmumbai Municipal Corporation (BMC).

“When there is excessive regulation and not enough enforcement on ground, there is always going to be opportunity to violate the law," said a partner at a corporate law firm, requesting anonymity, about the current state of the MTP Act.

Many look to amendments to make access to abortion easier. “For comparison, take a look at gun laws in India. They are just as restrictive but very well enforced. It is genuinely difficult to get a firearm in India without proper procedure."

Implementation is a significant pain point in the way the MTP Act is currently enforced. For one, it leaves the job of registering MTP centres, monitoring and inspecting them, and reporting violations to local authorities, to the municipal bodies. Most of these bodies are already overworked with civic duties such as repair and construction, and enforcing rules of the Shops and Establishments Act.

This leaves little time to ensure that MTP paperwork is in order and no doctor in a municipal jurisdiction is able to dispense medical abortion pills illegally.

“We have to often tell general practitioners who we know are administering medical abortions to get licensed," said Dr Padmaja Keskar, executive health officer in BMC’s F-South ward.

Advani added: “My teams visit nursing homes and clinics in different areas and we educate doctors there about the need to register as an MTP centre."

But what happens if her team discovers a doctor violating the rules? “Well, if an FIR (first information report) has to be filed, it can be filed," she said.

Sarita Barpanda, a reproductive rights lawyer with Delhi-based non-profit Human Rights Law Network, agrees that it would be helpful to loosen restrictions to make enforcement easier, as proposed in the amendments to the MTP Act.

“The law (in the current form) only talks about the registered medical practitioner," said Barpanda, adding that there is almost no structure at the community level, particularly in rural areas.

“What about extending it to other healthcare providers? The government has set up an anganwadi system for rural areas. This law should be extended to nurses, to anganwadis, to AYUSH doctors," she said.

The idea is to expand easy access to abortions for women who need them. “Why are we ignoring safe abortion access which is so important, especially for poorer women?" added Barpanda.

However, there is also the larger conundrum underlying all abortion-related legislation in India. While safe and easy access to abortions is important to ensuring reproductive rights for women, it also opens the door for sex-selective abortions. In some cases, women are forcibly made to abort their pregnancy by their husbands, partners and families, often without their knowledge as they may not know what pills they are being made to have.

But advocates and lawyers in the field disagree that this is a major concern. “I fail to understand why we assume that a woman will exploit such laws," said Barpanda. “The fact that medical abortions in India should be easily available is something that hasn’t been taken into account."

“This is another big myth," said Anubha Singh, programme coordinator at Delhi-based sex rights non-profit CREA, in an interview to The Quint earlier this year. “There’s a major conflation with the gender-biased sex selection lobby. Women who seek or provide abortions are targeted because it is believed they just want to get rid of female foetuses. But gender-biased sex selection only forms about 9% of total abortions, which is in a study by the ministry of health. The rest are genuine abortions needed to get rid of unwanted pregnancy, and there can be a thousand reasons for a pregnancy to be unwanted."

In fact, the government already has a law in place to prevent sex-selective abortions—the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994—which makes ultrasounds and other tests for sex-determination illegal and prescribes punishments for those conducting them.

But laws do not take care of the social stigma that continues to surround abortions. Changing the perception of abortions as something shameful and secretive to a basic reproductive right is a much bigger social project. One attempt for this was the #AbortTheStigma campaign that CREA ran on social media—Facebook, Instagram, Twitter—in May this year.

The time to implement reforms is now.

This is the last of a three-part series.

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