Niketa Mehta was in the 24th week of her pregnancy when a test revealed substantial abnormalities in the foetus’ heart that posed a risk to its survival. Mehta decided to abort, but found herself restrained by the Medical Termination of Pregnancy (MTP) Act, which prohibits abortion of a foetus older than 20 weeks, except when “immediately necessary to save the life of the pregnant woman”.
Mehta’s obstetrician sought judicial authorisation (Nikhil Datar v. Union of India) from the Bombay High Court, saying Mehta did not want to give birth to a severely disabled infant and witness its suffering. The court refused, saying the issue was of future health risks to the unborn child, and not to the mother.
This was in 2008. The ruling fueled a fierce debate around individual choice, ethics, technology and the law, and fueled demands from women’s and reproductive rights activists that the MTP Act be amended. Nine years since, in July this year, the Supreme Court allowed a woman to abort an over-20 week foetus which had serious cardiac impairments, observing that a woman’s right to reproductive choices is a part of her personal liberty.
The courts have clearly come a long way, reflecting a broader change in society, but a legislative amendment to increase the gestation limit for abortion from 20 to 24 weeks has been hanging fire for three years.
The 2014 draft bill proposes to allow abortion for up to 24 weeks’ gestation in rape cases, and to remove the limit altogether in case of specified abnormalities in the foetus. In order to make abortion services more accessible, it also proposes to allow AYUSH (Ayurveda, Unani, Siddha, Homoeopathy) doctors, auxiliary nurse midwives (ANMs) and nurses to conduct abortions.
The bill is much required–56% of abortions conducted in India are unsafe, a figure closer to that in countries where abortion is outright illegal. Those who support it argue that the law must uphold a woman’s right to her bodily integrity.
However, opponents cite concerns that extending the gestation period for abortion could enable more sex-selective abortions.
Experts say these fears are not entirely valid and could be better addressed by properly implementing existing laws. The proposed amendments would make abortions safer and save millions of lives, although they would require safeguards such as provision of proper training to service providers and raising awareness about the legal aspects of abortion.
Unsafe abortions are procedures conducted by untrained providers, and/or in unhygienic conditions.
Unintended or unwanted pregnancies can arise out of unmet need for contraception, contraceptive failure, or rape. When a woman is legally not allowed to abort, or lacks access to trained providers, she is forced to go to illegal providers, who may be untrained, or may perform the procedure under unhygienic conditions.
“MTPs are rarely provided in the public health sector,” Renu Khanna, founder of the NGO SAHAJ, and member of the Steering Committee of CommonHealth: Coalition of Maternal-Neonatal Health and Safe Abortion, told IndiaSpend. Although there is a provision for one gynaecologist in every Community Health Centre (CHC), there is a 76.3% shortfall of obstetricians and gynaecologists compared to their requirement at CHCs.
Private medical facilities are expensive, and financially out of the reach of most women. Stigma against premarital sex, or arising out of a romanticised notion of motherhood, leads women to “resort to secrecy”, Khanna said, adding that ASHA (accredited social health activist) workers tell her that women from their communities are hesitant to approach them for fear of disclosure.
Girls under the age of 18 need to have the consent of a guardian to undergo abortion, “so anonymity cannot be maintained”, said Jyoti Unni, a gynaecologist at Jehangir Hospital in Pune.
Often, women end up at unauthorised providers simply due to lack of information. A 2012 cross-sectional study conducted in Bihar and Jharkhand reported that fewer than half the women (41%) knew that abortion is legal.
The 20-week limit
Despite the recent Supreme Court order cited above, courts have delivered conflicting rulings in similar cases, guided by the advice of the medical boards that courts set up in such cases. This July, the Supreme Court denied abortion to a 10-year old who was 28 weeks pregnant. In May, another court allowed abortion for a 10-year old who was 21 weeks pregnant. Experts have voiced concerns that there are no guidelines for these medical boards.
Framed in 1971, the MTP Act gives no reasons why it decided on a 20-week cut-off. Medical professionals largely agree that the technology at that time allowed for safe abortions only up to 20 weeks. Datar, petitioner in the famous court case cited above, wrote in Scroll.in in January 2017 that this might have been because “in the days before sonography doctors would detect the signs of life in the foetus only around this time”.
With improved science and technology, “there is not much difference whether an abortion is conducted at 20 or 24 weeks safety-wise”, said Aruna Muralidhar, senior consultant for obstetrics and gynaecology at Fortis La Femme hospital, Bengaluru. “There’s not going to be an increased risk.”
Most foetal abnormalities can be detected by an ultrasound scan between 18 and 20 weeks. However, some anomaly scans take place between 20 and 24 weeks, particularly those pertaining to heart or brain defects. In case a scan result is unclear, or a woman has previously given birth to babies with heart defects, or she herself has a heart condition, an ultrasound is repeated at 24 weeks for detailed evaluation of the heart, Unni told IndiaSpend.
It is for this reason that some countries allow abortion beyond 20 weeks. The United Kingdom allows abortion till 24 weeks’ gestation, and in case of risk to the life of the woman and/or a substantial risk that the baby may be born with a disability, allows the pregnancy to be terminated at any time. China has a 28-week cut-off.
The amendment bill proposes to extend the limit to 24 weeks in cases where “the continuation of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”. This would include cases where pregnancy is caused by rape, or by contraceptive failure, it explains.
“The details of the category would be defined in the Rules and is expected to include survivors of rape and incest, single women (unmarried, divorced and widowed) and other vulnerable women (women with disabilities),” union health minister J.P. Nadda told the Lok Sabha in response to a question on March 24, 2017.
“This amendment is trying to recognise a need for such women to access safe abortion without any barriers,” Muralidhar said, adding that often, in cases of unplanned pregnancy, women may not realise they are pregnant until after the 20-week deadline. “Many women do not have regular periods–do not have a period for 3-4 months… If they are breastfeeding, they don’t have a period, so even if they are pregnant they don’t realise then,” Muralidhar said.
The amendment also proposes to remove the gestation limit altogether in case a foetus displays specified abnormalities. This would include cases where the “abnormalities would be incompatible with life”, said Vinoj Manning, executive director of Ipas Development Foundation (IDF), a New Delhi-based organisation that provides comprehensive abortion care (CAC) services across 12 states.
“These amendments will stop the harassment of women when they have to go from district court to high court to the Supreme Court,” Khanna said.
Expanding the provider base
Against 0.7 million reported annual abortions, India logged sales of 11 million units of popular abortion medicines, mifepristone and misoprostol, according to this June 2016 report in the Lancet, an international medical journal.
Abortion pills do not work in all situations, and self-administration can cause complications. “Abortion pills will only work if pregnancy is inside the womb. Many a times they take pill, pregnancy is happening outside the womb… extremely dangerous for the woman’s life,” Muralidhar said.
AYUSH doctors, ANMs and nurses can safely provide vacuum aspiration, which takes from 3 to 10 minutes and can be performed on an outpatient basis using local anaesthesia, during the first trimester of 12 weeks, according to the WHO.
By making abortion services more widely available, the bill would reduce the likelihood of self-use of abortion pills, said Manning, who was part of the expert group that developed the WHO guidelines.
However, experts emphasise that practitioners of complementary systems of medicine would need to be given high quality training to enable them to also deal with potential complications. Some 2-5% of all women require surgical intervention to resolve an incomplete abortion, terminate a continuing pregnancy, or control bleeding. “We need to ensure that this does not increase morbidity in women,” Muralidhar said. “They should be tied up with hospitals so they can refer the client to a gynaecologist if needed,” Unni added.
However, in addition to the shortage of gynaecologists, there is also a shortage of AYUSH doctors at the CHC level. Allowing AYUSH doctors to conduct abortions will only expand the provider base if enough doctors are available.
On March 7, 2017, a homoeopathy doctor was arrested for running an illicit sex-selective abortion racket in Sangli district in Maharashtra. Though he did not have sonography machines, the police said some doctors conducted sonography tests elsewhere and sent patients to him for abortion. Surgical instruments and allopathy medicines were found at the homeopathy doctor’s clinic.
The proliferation of sex-selective abortion across the country, and the resultant dip in the sex ratio, have been a key concern holding back the amendment bill. By the health ministry’s estimate, 9% of all abortions are sex-selective. Yet, it has been a serious enough worry for the Prime Minister’s office to cite as a reason to send back the bill to the health ministry, asking that the existing MTP and Pre-Conception and Pre-Natal Diagnostic Techniques (PC&PNDT) Act, 1994, laws be properly implemented first.
Allowing AYUSH doctors to conduct abortions would lead to more sex-selective abortions, Varsha Deshpande, an anti-sex-selection activist in Maharashtra, told IndiaSpend, voicing a common view against the idea.
However, supporters say there are other reasons why the government has been unable to prevent the proliferation of sex-selective abortions. “There are supposed to be committees at block, district, state level to monitor abortion services [for sex-selection]. But you don’t have any of these committees in existence,” Sarita Barpanda from Delhi-based lawyers’ collective Human Rights Law Network told IndiaSpend. The PC&PNDT Act is poorly implemented in most states, 10th Common Review Mission (CRM) report (2016) of the National Health Mission (NHM) reported. “Even where committees have been formed, reasons such as lack of witnesses, insufficient evidence, and out of court settlements are cited as major reasons for low conviction rates,” it said.
Experts say better implementation of PC&PNDT Act is important, but not at the cost of restricting access to abortion services. “[T]hose who want to undergo sex-selective abortions do not wait till they cross 20 weeks,” Datar wrote. An ultrasound test can tell the sex of the baby at about 12 weeks.
“There is need to clearly delineate [the difference between] these two Acts,” Barpanda emphasised. Rather than targeting sex determination, many inspection visits targeted abortion services, this 2015 study based on interviews with gynaecologists in western Maharashtra showed. All the three gynaecologists IndiaSpend talked to agreed that there is “hesitance”, “fear” and “suspicion” among the medical community when a woman seeks abortion of a female foetus for whatever reason.
There are systems and mechanisms that must be strengthened, Barpanda said, while Khanna emphasised that the PC&PNDT Act must be implemented in all fairness but without harassing doctors.
The pushback against the amendment bill also has a communal tinge, Mohan Rao, professor at the Centre of Social Medicine and Community Health at the Jawaharlal Nehru University in Delhi, told IndiaSpend. “When the MTP Act was passed in 1971, there was nobody to oppose it. Today, the situation is different,” he said, referring to the anti-abortion far-right segment.
“Muslim population is the major problem facing Hindu society. (We oppose abortion because) Hindu family should have at least three children. The Hindu population needs to be increased. That is what the RSS [Rashtriya Swayamsevak Sangh] has always been saying,” an RSS representative was quoted as saying in a 2015 article in the website The News Minute.
Some opponents take an ethical, arguably pro-life view. “Fifty percent of foetuses are alive after 22 weeks. I have been trained as a doctor, but I would have moral objection to performing an MTP after 22 weeks because that would be contributing to foeticide,” Rao said.
Since most anomalies can be discovered at 12 weeks, and some at 19 weeks, women should go to a doctor early, Mamta Pattnayak, gynaecologist and obstetrician at Fortis Hospital, Gurgaon, said. “Why to delay till 24 weeks? So that the trauma will not happen to the patient, and the trauma will not happen to the doctor. It is a deep trauma for the doctor also, who is terminating the baby,” she said.
However, those who support the amendments point out that parents are well within their rights to abort if the child has abnormalities incompatible with life. “The foetus is not an independent entity and depends completely on the welfare of the woman. Without her well-being, one cannot talk about the well-being of the foetus,” a group of social workers working with women on marital and reproductive rights commented in The Hindu.
Experts also point out that the bill proposes to relax the gestation limit only for a limited list of foetal abnormalities that are incompatible with life. “The Ministry is expected to define the list of such abnormalities which, by current medical knowledge, will lead to the pregnancy not resulting in continued life of the baby,” Manning said.
A first step
The bill also proposes other changes, such as doing away with the need for opinion from two doctors to terminate a pregnancy beyond 12 weeks.
Currently, only married women can cite ‘contraceptive failure’ as a reason to terminate a pregnancy. This bill would enable unmarried women to avail this option too.
The draft bill, if passed, would be just the first step in ensuring access to safe abortion services for women. Rules to be framed under the law would provide greater clarity on issues such as which doctors can provide abortion services; until which week pregnancy can be terminated by which doctors and through which methods; what foetal abnormalities or other reasons are valid to abort after 20 weeks; what standard of training AYUSH doctors, ANMs and nurses should be provided with to be allowed to conduct abortions, etc.
At the same time, the need for comprehensive sex education and improved availability of contraceptive options cannot be emphasised enough. “Women use iPill which is not a contraceptive, but an emergency pill… Most of the people take iPill and then get pregnant,” Pattnayak said, emphasising that proper information and access to contraceptives can help prevent the need for abortion.
- The spirit of both PC&PNDT and MTP should be maintained but without intimidating doctors. At the moment, the punishment meted out to gynaecologists who commit sex-selective abortions and those who fail to fill out a form properly is the same: Jyoti Unni, gynaecologist at Jehangir Hospital, Pune.
- There is a need to spread awareness about the legal aspects of abortion. “The ASHAs are surprised that there could be someone in their community who can have an unwanted pregnancy… abortion is hardly discussed amongst health workers in communities,” said Renu Khanna, founder of NGO SAHAJ, and member of the Steering Committee of CommonHealth: Coalition of Maternal-Neonatal Health and Safe Abortion.
- Government has written to all the states and union territories to set up permanent medical boards to deal with court cases of abortion beyond 20 weeks until the bill is finalised. This would help expedite the process.
- Along with implementation of the proposed amendments, India needs better services, respectful and dignified care, and non-judgmental doctors: Sarita Barpanda from from the Human Rights Law Network.
(Agrawal is a Rajasthan-based independent journalist covering gender issues in India.)
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