Photo: DanEvans/pixabay.

The law on abortion in India is governed primarily by Sections 312-316 of the Indian Penal Code (IPC) and the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971. The IPC provisions criminalise abortion; the person undertaking the abortion as well as the doctor (or registered medical practitioner) facilitating the abortion are liable to be prosecuted.

However, the government enacted the MTP Act as an exception to the IPC to exempt medical practitioners from criminal liability only if they terminate the pregnancy as per Sections 3 and 5 of the Act. The preamble to the Act states that it is “an Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.” Thus, it is a doctor-centric legislation that prescribes specific circumstances for legal abortions.

Activists in India have been seeking legal reforms on abortion for over a decade, through both parliamentary passage and constitutional litigation. On March 2, 2020, Harsh Vardhan, the Union health minister, introduced a new set of amendments to the MTP Act in parliament. While the statement of objects and reasons of the MTP Amendment Bill 2020 clearly articulates that the MTP Act intended to provide legal, affordable and safe access to abortion, the proposed amendments are inadequate and continue to reflect the hetero-patriarchal, population-control and eugenic rationale of the state. It is evident that the amendments have not been framed within a rights-based context for a person seeking abortion.

First, the proposed amendment still requires one doctor to sign off on termination of pregnancies up to 20 weeks old, and two doctors for pregnancies between 20-24 weeks old. The overall upper gestational limit for terminating pregnancies has been increased from 20 to 24 weeks. However, it is conditioned for a “certain category of women”. This category has not been defined in the Act but will be prescribed by the MTP Rules. Thus, it is not based on request or isn’t at the pregnant person’s will but on a doctor’s opinion. This is, in fact, a step backwards from the draft MTP Amendment Bill of 2014, which proposed that a pregnancy up to 12 weeks old could be terminated “on request of a woman”.

It is imperative to have abortion on request or at will because doctors often hesitate due to fear of prosecution under the IPC, as well as confusion and misconceptions about the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 and the Protection of Children from Sexual Offences (POCSO) Act, 2012. The conflicts between these laws also have a chilling effect on doctors’ willingness to perform abortions. The law must shift from being doctor-centric to one that is based on a pregnant person’s decision, made in consultation with their doctor.

Second, the Bill provides that in cases of foetal “abnormalities”, there will be no upper gestational limit on termination. With this change, the legislation continues to advance eugenic goals, illustrated in the press release, which specifically states that the Bill intends to expand access to “safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds.” Eugenic goals reinforce the view that certain foetuses are unwanted and undesirable, advancing ableist rationales.

Moreover, the Bill considers only eugenic reasons for terminations after 24 weeks of gestation. If safe abortions can be performed at any stage of the pregnancy in case of foetal “abnormalities”, then they should be permitted on other grounds, such as a sudden change in circumstances due to separation from or death of a partner, or a change in financial situation, domestic violence, etc. Disability rights advocates have argued that foetuses with potential disabilities should not be singled out for abortions. This reinforces the notion that persons with disabilities have less value than persons without disabilities, and that all foetuses with “abnormalities” should be terminated. It should be the sole discretion of the pregnant person, in consultation with their doctor, to carry a pregnancy to full term or to abort, even if the foetus has a potential disability, cognitive impairment and/or other medical conditions.

Third, the Bill mandates the government to set up a medical board in every state and union territory. This board will be responsible for the diagnosis of substantial foetal “abnormalities” that require termination after 24 weeks. This kind of third-party authorisation is burdensome and has previously resulted in severe delays in abortion decisions. A Pratigya Campaign study of MTP cases between 2016 and 2019 showed that courts rely largely on medical board opinions, which take into account various factors, including viability of the foetus. 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, and this could result in pregnancies reaching advanced gestational age before termination is permitted, if at all.

Moreover, constituting boards at the state level creates significant access challenges for those in rural areas, especially among marginalised persons. Even when boards are at the district level, the availability of several specialist doctors is suspect given the weak health infrastructure in many parts of the country. Multiple invasive examinations can be stigmatising for the person and can impact their mental health, forcing them to resort to unsafe abortions.

Fourth, the MTP Act can be characterised as a ‘family planning’ law, evidenced by Explanation II to Section 3(2): “Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.” This patriarchal imposition of ‘motherhood’ on all women, and the reinforcement of traditional gender stereotypes to restrict access to reproductive healthcare services, plays a significant role in women’s decisions to choose legal or illegal abortions, or even to disclose their desire to get an abortion.

The Bill replaces the phrase “by any married woman or her husband” with “any woman or her partner”, and also adds “or preventing pregnancy” after the phrase “limiting the number of children”, which is a positive step and in line with what the 2014 draft amendment Bill had proposed. However, this provision still restricts abortion to a heteronormative framework, as the imagination of the law is limited to the use of contraceptives to limit children or prevent pregnancy within a ‘partnership’ that is likely to exclude many marginalised groups, including sex workers.

Fifth, the introduction of Section 5A to the Act is problematic in that it allows a doctor to reveal details of the person whose pregnancy has been terminated to any person “authorised by law”. This is a violation of confidentiality and privacy, and the addition of a penal provision will further create a chilling effect and deter doctors from providing abortion services.

Finally, the proposed amendment uses the word “women” throughout, although access to abortion services is critical not only for cisgender women but also for transgender, intersex and gender-diverse persons. Therefore, any legislative framework on abortion must ensure that all individuals, irrespective of gender, have access to safe, affordable and legal services. The word ‘women’, therefore, should be replaced by ‘person’.

§

While the proposed MTP Amendment Bill allows unmarried women to get abortions and extends the gestational limit in limited circumstances, it is still far short of being a rights-based legislation. Additionally, the ‘limited circumstances’ will not be defined in the MTP Act but only in the MTP Rules, which may be arbitrary and is likely to be drafted without any consultation with stakeholders.

In the 2017 decision of Justice K.S. Puttaswamy v. Union of India, the Supreme Court recognised privacy as a fundamental right under the Indian Constitution, including within its scope the rights to bodily integrity, reproductive choice and decisional autonomy. In Puttaswamy, Justice D.Y. Chandrachud cited the landmark 2009 case Suchita Srivastava v. Chandigarh Administration, where the court expressly stated that reproductive choices can be exercised to procreate as well as to abstain from procreating. Subsequently, the Supreme Court – in two decisions in 2018, Navtej Johar v. Union of India and Joseph Shine v. Union of India – recognised the importance of sexual autonomy and linked it to reproductive autonomy.

In spite of such decisions, the proposed amendments maintain the paternalistic doctor-centric framework of the MTP Act, where the decision to terminate vests with the doctor and not the pregnant person.

Any proposed legislation governing abortion must uphold the desires of the pregnant person, and not give way to social stigmas or gender stereotypes. The consultation and deliberation process allows for public participation in law-making, provides an opportunity to gather the views of all stakeholders, including critical ones, and guarantees transparency. For example, the 2014 Bill was drafted after much consultation with various stakeholders and invited public comments. However, the current Bill was drafted under a cloak of secrecy and fails to reflect important stakeholders’ perspectives, including disability rights groups, sex workers, Dalit groups, Adivasi groups, trans-persons and medical providers, among others.

It should be framed within a rights-based language where the pregnant person has the final say on abortion and the role of the doctor is secondary in nature (to ensure that the procedure can be performed safely at any given point of the pregnancy). Finally, none of these legislative reforms are likely to be effective if abortion is still criminalised under the IPC. Anything short of this, therefore, is only a half-hearted effort at legal reform by the state, which ironically continues to pitch this as a women’s rights legislation within a gender justice framework, as Smriti Irani articulated last month.

Dipika Jain is a professor of law, vice-dean of research and founding executive director of the Centre for Health Law, Ethics and Technology at Jindal Global Law School, Sonipat.