Are service providers of reproductive rights such as abortion adequately acquainted with the nuances of The Medical Termination of Pregnancy (Amendment) Act, 2021 and its amendments? Do they fear prosecution if they provide such services? Are those seeking access equipped with the knowledge of when to access such services? Are service providers familiar with the recent amendments to the MTP Act? What are the challenges that lie between protecting of the rights of the service providers and the rights of those seeking reproductive health services such as abortion?
These were some of the questions that came up during the course of the launch of a handbook on abortion laws for healthcare providers in India on July 13. The handbook, a seminal effort of the IPAS Development Foundation and the Centre for Justice, Law and Society (CJLS), a research centre at the Jindal Global Law School, addresses these concerns and the problems involved in the conflation of laws such as The Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT), The Protection of Children from Sexual Offences Act, 2012 (POCSO) with the MTP Act.
The launch was preceded by a panel discussion between an array of experts representing the legal, medical and social activism fields. It was pointed out that there were as many as 27 laws that governed pregnancies, not just the MTP Act alone. Abortion was generally criminalised, with the exception of the MTP Act, even though reproductive rights are one of the fundamental rights under Article 21, as affirmed in the nine judge bench order ( K.S. Puttaswamy vs the Union of India) and are recognised as statutory rights under the MTP Act. In Suchitra Srivastava vs Chandigarh administration, the Supreme Court held that the right to make reproductive decisions was a facet of personal liberty under Article 21, which included the right to procreate as well as the right to abstain from doing so.
Abortion is legal in India
“It is important to know that abortion is legal in India,” said Dipika Jain, Director, CJLS, one of the panellists at the launch. She underscored how important this was in the context of the regressive U.S. Supreme Court judgment in Roe vs Wade. Another panellist, Dr Jagdeep Tank, a practising obstetrician-gynecologist and an abortion service provider for over 25 years, said that the MTP Act was an empowering law and protected the providers. He said access was not as much a problem as getting trained service providers. But service providers, too, had challenges, he said, and mentioned he had to take as many as 27 permissions to run his clinic in Mumbai. He was also concerned that the Roe vs Wade judgment was a pointer to the direction in which things were headed. “What we have here is much better as compared to large parts of the world,” he said, in an obvious reference to the MTP Act.
While broadly a progressive Act that legalised abortion, the Act gave this right only to married women. It is also undeniable that there were problems with the MTP Act, 1971 as well. Critics had pointed out that it reeked of moral biases. The amendments, too, did not provide for “abortion at will”, but were conditional. The increase in the upper gestational limit was also conditional, as it applied to vulnerable women, survivors of rape, incest victims, minors but not in other cases where substantial fetal abnormalities were detected. The clearance for such abortions could be possible only from a medical board, which, critics feel, was discriminatory and “eugenics oriented”. Therefore, only certain categories of women could undergo abortions beyond 20 weeks.
Yet, despite progressive legislation, healthcare providers faced several challenges which were discussed at the launch. The handbook uses the term “pregnant persons” instead of “women” as a starting point as it argues that not only women, but transgender and gender variant persons needed access to abortion services. Under the MTP Act, only registered medical practitioners could perform abortions and, if they adhered to the provisions of the Act, they could not be prosecuted for any criminal offence. Auxiliary Nurse Midwives, Trained Birth Attendants, trained nurses, or even AYUSH practitioners were not authorised to perform abortions and could be penalised with imprisonment up to five years if they did so. The gestational period would determine how many medical practitioners were required to provide their opinion on whether the abortion met the requirement under the MTP Act. If the gestational period was beyond 24 weeks, a medical board would decide. This was among the recent amendments to the MTP Act.
Easing procedural barriers
There were certain guidelines of the Health Ministry for survivors of sexual assault and violence to access reproductive health services without any procedural or other barriers. Doctors were legally bound to examine and provide treatment to victims of sexual violence. As far as consent was concerned, in the case of a pregnant minor or a mentally ill person, the written consent of the guardian was required. For a person neither mentally ill nor a minor, no such consent was required. Pregnant persons did not need any court order or third party consent for an abortion.
The challenges to healthcare providers
Panellists at the launch pointed out that many State governments had not issued a gazette notification to set up medical boards as mandated under the Act. The Delhi government had set up a medical board after a court order. Among the panellists at the launch was Dr Alka Barua, a pediatrician and an independent consultant, who said that the conflation of various Acts with the MTP Act made it difficult for practitioners at the ground level. She wondered whether the amendments to the Act had improved access to abortion. Under POCSO, she said, it was mandatory to report persons under 18 seeking abortion. This was a violation of privacy. Vigilante methods by state authorities to expose clinics performing sex determination tests were also putting service providers at risk.
The handbook flags the concerns of healthcare providers of abortion services and provides them with a guide about their rights and responsibilities. Yet, while protecting the right to seek abortion and the right to provide the same, it is also important to acknowledge the ever-worsening child sex ratio in the country, which is undoubtedly an outcome of gender discrimination and also of sex selective abortions. This aspect should have also been ideally covered in the discussion.