The Supreme Court of India recently allowed a woman to abort her 26-week pregnancy, terming the 20 week ceiling on abortions as arbitrary, harsh, discriminatory, and violative of the fundamental rights. What is striking here though is the very fact that the Court had to “allow” the termination of pregnancy. What this tells women is that they do not have a choice in the matter, that the ultimate decision making power to carry through an abortion lies in the hands of the State, and not her own.
When can you get an abortion?
To start off, the common misconception is that abortions are illegal. Abortions are not illegal in India, but may be performed if the pregnancy satisfies specific conditions stated under the Medical Termination of Pregnancy Act, 1971 (“MTP”).
A woman can medically terminate her pregnancy if she is:
- Up to 12 weeks pregnant, with the permission of one registered medical practitioner
- From 12 to 20 weeks, with the permission of two registered medical practitioners
But abortions in the above cases are only allowed under the following conditions, with the consent of the woman:
- The medical practitioner is of the opinion that the continuation of pregnancy involves a risk to the life of the pregnant woman or grave injury to physical or mental health.
- The medical practitioner is of the opinion that there is a significant risk that if the abortion is not carried out and the child is born, it would suffer from physical/mental abnormalities and be seriously handicapped.
- The pregnant woman alleges that the pregnancy was caused by rape (This is a mere allegation of rape, and rape does not have to be proved. There is no compulsion on the part of the practitioner to report the alleged rape).
- A married woman is pregnant owing to failure of contraceptives/any device/preventive methods used by her or her husband which led to an unwanted pregnancy.
- A woman’s actual and reasonably foreseeable environment will be taken into account to determine whether the continuation of pregnancy would affect her physical/mental health.
At any time during the pregnancy (if the pregnancy is beyond 20 weeks), it may be terminated if a medical practitioner is of the opinion that the termination is necessary to save the life of the pregnant woman.
Who can get an abortion?
Any woman who is above 18 years of age can get an abortion and does not need anybody else’s permission for the same. A minor below this age needs the written permission of her guardian, as does a woman with psychosocial disabilities.
A woman does not need the consent of her parents or her husband. Medical practitioners are also not required to ask the woman to furnish her marriage certificate.
What rights are available to a pregnant woman?
- Right to Reproductive Healthcare: The Right to Life contained in Article 21 of the Constitution of India contains the right to health, which includes the right to access government health facilities and a minimum standard of care. This involves the enforcement of the reproductive rights of a woman, including the right to nutrition and medical care of the newly born child and continuously thereafter. Especially a pregnant woman, cannot be denied facilities based on her economic or social background. A government health facilities essentially cannot turn aware care and assistance. She also cannot be turned away for the lack of an identity card. For example, the lack of a Below Poverty Line Card to prove eligibility for a scheme cannot be a grounds for rejecting service to her (Laxmi Mandal v. Deen Dayal Harinagar Hospital).
- Right to Privacy: the information related to the termination of pregnancy (including the consent form) shall be placed in an envelope labelled “secret” to be kept in safe custody of the head of the hospital. An admission register will contain the serial number given to the woman for the termination of pregnancy, and such register will be kept in secret as well. The register shall be kept only for 5 years, after which it is to be destroyed. The register is a secret document, the details about the pregnant woman shall not be disclosed to anybody, including family members, police or PCPNDT authorities.
- The medical practitioner may grant a certificate to the woman upon termination of her pregnancy for her to avail of medical leave from her place of employment. This shall be done only on application by the woman. The employer is prohibited from disclosing these details to anybody (Clauses 4-7, Medical Termination of Pregnancy Regulations, 2003).
Where can you get an abortion?
- All hospitals established/maintained by the Government or hospitals approved by the Government to perform abortions are allowed to carry out any procedures to terminate pregnancies. All government run hospitals are MTP centers.
- For a private facility, a certificate towards the same has to be granted to hospitals by a District Committee constituted under the Act.
- Only Registered Medical Practitioners who are qualified to carry out abortions may administer the pill or the surgery.
- A woman will be required to fill out a consent form giving her permission for the abortion which will contain her name, son/daughter/wife of, age, address and signature.
- In the admission register form that the practitioner is required to fill out, in addition to the aforementioned information, her religion and details of pregnancy will be taken down.
- In cases where the life of the woman is at risk, she can terminate the pregnancy even where the hospital which is not registered, but the doctor has to be a registered medical practitioner. But, where there was no such emergency, a practitioner who is not allowed to carry out the procedure/the hospital that isn’t registered will be subject to punishments.
Here is a crowd sourced list of non-judgmental gynecologists.
In States like Maharashtra, an MTP center with trained staff are not allowed to refuse service to a woman seeking abortion services.
How much will it cost?
The cost for an abortion depends on the hospital and the stage of pregnancy. In Calcutta, the following was the estimated breakdown in a private hospital:
Rs. 4,000-5,000 for consultation
Rs.1,000-2,000 for the services
Rs.1,000 or so for medication
However, government hospitals are required to provide services at low rates, accessible to all. Some states provide free services as well, but the rates differ between states and can range anywhere between Rs. 300 – Rs. 3000.
The procedure for abortions is as follows:
- < 7 weeks – abortion can be done with just tablets. The tablets are safe, effective and have a success rate of more than 90%. The advantages are that the patient does not need any admission, anesthetic, any instrumentation of the uterus. Mifepristone and Misoprostol are the tablets used most often for self-induced abortion. However, these are not over the counter pills and should not be taken without a doctor’s prescription and advice as it could lead to incomplete abortions and infections.
- 7 – 12 weeks – then abortion is a simple procedure. It is done under an anesthetic in a day care center that is certified for abortion services. The patient is able to go home in a few hours.
12 – 20 weeks – the procedure is a little lengthy and one may need to stay overnight in the hospital.
Why is the word feticide problematic? This is because the child is not born yet, and until it is born, the termination of the pregnancy is not a “killing”. Gender Selective Termination of Pregnancy is a problem-free way of referring to selective abortions. While conducting surveys of sex ratios of abortions in hospitals, the ratios must be determined over a fixed population over a fixed period of time. In the absence of these required caveats, there is a propensity to term abortions which lean towards the female gender as female feticides, thereby creating an atmosphere of distrust towards abortions as a whole.
Abortion and Sex-Determination
The MTP Act is often linked with the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT) which prohibits sex selection before or after conception. It prohibits practitioners, hospitals and various technologies from engaging with sex-selective activities. The act does not criminalize abortions and there is an urgent need to delink the two laws. The PCPNDT Act serves to prohibit sex determination of either genders, the offender being the person who discloses this information and engages in the prohibited activity. The Act is silent on the status of the foetus after the sex has been determined. The law cannot be used as a means to cull all abortions as only the MTP deals with situations under which a pregnancy may be terminated.
In a workshop conducted by CREA, Advocate Anubha Rastogi informed the participants of the law and the rights available to them. What was shocking was the ground realities that persist in a country that claims liberalism and respect for women as its basic tenet. Persons who work at grass-root levels disclosed experiences with hospitals where the personal prejudice of medical practitioners gains precedence over a woman’s choice. Marriage is still a statutory requirement to abort pregnancies for failure of contraceptives. This is an indication of “family” being more important in the eyes of the law, than a woman’s agency. Single women who choose to be sexually active and abort unwanted pregnancies are subject to a Pandora’s box of judgment and prejudice.
Abortion is not a right in India. The very notion that a woman has no right over her own body and is subject to the parental role of the State, is one that needs to be challenged absolutely and vigorously. The lack of knowledge of abortion procedures coupled with the widespread misinformation that abortions are illegal have led to countless women carrying out unsafe abortions, thereby risking their lives and health.
As we descend (or emerge) into the “modern era”, it is shocking that India is yet to accept a woman’s right over her own body. The lack of institutionalized abortion rights turns women to vulnerable situations in private clinics, to shell out copious amounts of money to undergo safe procedures. Women often have to barter quality for confidentiality, financial inseucity for judgment. The stigma against abortions and the “beauty of motherhood” hamper a woman’s free and open access to necessary services. They are then forced to resort to unsafe and traditional methods of abortion (that spare them societal shame) which leads to infections and risks. The law is beginning to look at abortions from a woman’s lens, and it’s time this spark gets the necessary push and shove into every woman’s life. It’s time we take our bodies back.