Audio podcast: What’s wrong with India’s new abortion law?

Ashraf Engineer

March 27, 2021

EPISODE TRANSCRIPT

Hello and welcome to All Indians Matter. I am Ashraf Engineer.

Most people don’t know this but one-third of all pregnancies in India end in abortion and roughly 47 in every 1,000 women between 15 and 49 years of age have undergone one. Why are we talking about this now? It’s because on March 17, 2021, Parliament passed the Medical Termination of Pregnancy (Amendment) Bill, 2020, better known as the MTP Bill, that radically altered India’s abortion laws. While there are some valuable provisions in the law, there is a cloud hanging over it. The law makes it tougher for women to get abortions in some cases, compels them to seek clearance from medical boards for it and is eventually a contraction of their reproductive rights.pr

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The Lok Sabha had passed the MTP Bill in 2020. So, when the Rajya Sabha passed it, it became law and defined the legal framework for accessing abortion services.

Abortion is, of course, a sensitive issue. The differing opinions on it are strong, though it hasn’t become a national issue in the way it has in some western countries like the US. On the one hand, people say terminating a pregnancy should be entirely up to the woman and is a critical component of her reproductive rights. On the other side are those who believe that the foetus is no less than any other human being walking the Earth and the state should therefore protect it at any cost. At a global level, there is a vast variation in laws with countries setting varying conditions and time limits for allowing abortions. According to one report, 26 countries do not allow abortion at all and 39 allow it only if the mother’s life is at risk.

From that perspective, India is among the more liberal countries.

India’s new law has been justifiably hailed for some key provisions. For instance, it has a privacy clause that makes revealing the identity of the woman seeking an abortion a punishable offence. Also, it allows abortion of foetuses up to 24 weeks old and changes the language from ‘husband’ to ‘partner’ so that the woman’s marital status has no impact on the clearance.

So, what exactly is the problem with the law?

The devil is in the procedural details. Not only does the law make abortion subject to permission from others, the logistics of that clearance are often impractical.

The law mandates the setting up of medical boards to decide on the abortion of pregnancies beyond 24 weeks due to foetal abnormalities. The board isn’t feasible in India and may make accessibility of abortions difficult. I’ll explain how in a second. But, first, let me explain the clearance process.

Before the law was passed, a woman could seek abortion until the 20th week of pregnancy. For this, she needed the approval of two registered medical practitioners. The pregnancy could be terminated if it was deemed harmful to her life or physical or mental health. It could also be terminated if there was a good chance that the child would suffer physical or mental abnormalities. If the reason did not fit this framework, the abortion would be punishable. The doctor performing it faced a jail term of up to three years, while the woman faced imprisonment of up to seven years.

Under the new law, pregnant women need the nod of only one registered medical practitioner to get an abortion until 20 weeks. Those seeking an abortion between 20 and 24 weeks need the nod of two registered medical practitioners. And women seeking an abortion beyond the 24-week gestation need the permission of a medical board.

The law asks for a medical board in every state and union territory. Each board would need to have a gynaecologist, a radiologist or sonologist, a paediatrician and other members prescribed by the state or union territory.

Here’s where we arrive at the problem.

There’s a huge unavailability of adequate healthcare, specialists and reproductive services in India – especially in underdeveloped areas.

A study by The Centre for Justice, Law and Society, Jindal Global Law School, indicated a shortfall of more than 80% of obstetricians and gynaecologists in most states and union territories. States such as Tamil Nadu, Arunachal Pradesh, Meghalaya, Mizoram, Sikkim and Gujarat recorded very low numbers or a near-total absence of specialists like gynaecologists and paediatricians.

Such factors, along with the stigma associated with abortions, has led to a large number of unsafe abortions that have caused serious complications and even death. In fact, unsafe abortions are the third leading cause of maternal deaths in India – roughly eight women die every day from them.

Given the severe shortage of specialists required, it will be nearly impossible to constitute the medical boards the MTP Bill mandates. They also introduce an unnecessary bureaucratic process that will result in delays and higher costs for women seeking an abortion. For instance, a woman in a rural area will need to travel to wherever the board is located to seek its clearance.

The other argument against the boards is Constitutional. There is a point of view that they violate the fundamental right of pregnant women by forcing them to seek clearance from others. After all, why should women need third-party authorisation for a decision that’s theirs to make – not to mention the multiple invasive examinations they will be subjected to? Why should a woman have to justify wanting an abortion and be at someone else’s mercy?

Women’s reproductive rights are being buried under layers of procedure. They snatch away the woman’s autonomy over her body and make abortion challenging to access.

Many doctors point out that 80% of the abortions in India happen in the first trimester. Give women the autonomy they need during that period and it will result in safer choices.

The law may be clothed in progressive provisions but underneath them there is no sign of a rights-based approach. Not only are the provisions impractical, at their core they are patriarchal and about having agency over a woman’s body.

Thank you for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at editor@allindiansmatter.in. Catch you again soon.