Abortion in India: Experts call for changes

Even as the government puts finishing touches to changes in India’s old abortion law, experts say change is the need of the hour

By Rohan Gupta
Published: Tuesday 27 August 2019

Even as the Union government puts finishing touches on a bill to amend India’s 48-year-old abortion law, experts are unanimous in their opinion that change is the need of the hour.

The government, on August 2, 2019, told the Delhi High Court in an affidavit that it was working on a draft legislation to amend the Medical Termination of Pregnancy (MTP) Act, 1971. The bill had been sent for inter-ministerial consultation.

The affidavit was filed in response to a petition submitted by activist Amit Sahni, demanding changes in the existing law. The petition challenged Section 3(2)(b) of the existing Act, demanding the pregnancy period for abortions to be raised to 24-26 weeks from 20 weeks, in case of a health risk to the mother or the foetus.

Section 3(2)(b) restricts the length of pregnancy termination period to 20 weeks and requires two medical practitioners to have the opinion that continuance of pregnancy would subject the foetus or the mother to considerable risk. It is applicable in case of pregnancies exceeding 12 weeks but not 20 weeks.

Another section, 3(2)(a), requires that in case of pregnancies not exceeding 12 weeks, abortion can be performed only if a medical practitioner forms an opinion that continuance of pregnancy would endanger the mother or the foetus’ life. Challengers demand that the requirement of a medical practitioner’s opinion be struck off.

2015 study in the Indian Journal of Medical Ethics said 10-13 per cent of maternal deaths in India are due to unsafe abortions. “If women are not allowed to terminate their pregnancy legally after 20 weeks, they will either go abroad for abortions or terminate it illegally. This will lead to unsafe pregnancies,” Sahni told Down To Earth.

Extending the gestation period beyond 20 weeks can lead to better detection and hence, abortion of foetuses with abnormalities as “anomaly scan conducted at or after the 20th week of pregnancy gives the exact picture whether the foetus is suffering from Down Syndrome, congenital malformation or any other abnormalities,” he added.

“Science has moved on. Now, pregnancy can be terminated up to 24 weeks,” said Indian Medical Association (IMA) Secretary RV Asokan.

He also said the government was not focusing on important issues like devolution of abortion rights to unmarried women. Instead, it is trying to increase the provider base to include AYUSH (Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy) doctors which was unjustified.

According to the database maintained by the Centre for reproductive Rights, 67 countries across the world allow abortions on women’s request. Twelve weeks is the most prevalent gestation limit. This list includes almost all of Europe, Central Asian countries excluding Afghanistan, Canada, Australia and some countries in Africa.

Abortion after the first trimester (12 weeks) is mostly allowed in cases of risk to the mother or foetus’ health.

It remains to be seen how the draft bill will address these issues. When asked whether the IMA would oppose the new amendments or not if the government tries to increase the provider base of abortion services, RV Asokan said, “What else can we do?”

Journey of abortion laws in India

October 6, 1860: Section 312 of Indian Penal Code, 1860 criminalised abortions, dubbing it as intentionally “causing miscarriage.”

December 30, 1966: The Shantilal Shah Committee report came out, which recommended that abortion and reproductive laws need to be regulated in India. The committee was set up in 1964 after 15 countries legalised abortions in the 1960s.

August 10, 1971: The Medical Termination of Pregnancy (MTP) Act was passed which legalised abortion.

December 18, 2002: The MTP Act was amended. The law of abortion was decentralised and penal sanctions were added for unapproved abortions that led to the formulation of MTP rules in 2003. These rules increase access for women, especially in the private health sector.

October 29, 2014: The Union Ministry of Health and Family Welfare proposed a draft bill to amend the existing MTP bill. This came after the National Commission for Women had recommended that the 20-week gestation limit for abortion be raised to 24 weeks and urged that women, irrespective of their marital status should be given abortion rights. The bill was never placed in Parliament.  

Major amendments proposed included:

  • Raising the gestation limit for terminating abortions to 24 weeks
  • Increasing the provider base of abortion services by including registered health practitioners to conduct abortions after specified training
  • It also eliminated the pre-condition of the opinion required of a registered medical practitioner, whether to abort or not, in case of pregnancies not exceeding 12 weeks
  • In case of pregnancies exceeding 12 weeks but not 24 weeks, it reduced the number of opinions required by a medical practitioner from two to one, extending more rights to women over their pregnancies
  • Replaced “married women” to “all women” under the contraceptive failure clause which would help unmarried women to access safe abortion in cases of contraceptive failure

November 6, 2014: The Indian Medical Association (IMA) opposed the bill, questioning the amendment which increased the provider base of abortion services.

August 4, 2017: MTP Amendment bill, 2017, was introduced in the Rajya Sabha which intended to raise the pregnancy period of abortions to 24 weeks.

January 22, 2018: MTP Amendment bill, 2018, was introduced in the Lok Sabha with the same demand to substitute the 20 week duration with 24 weeks and added that it should be raised to 27 weeks in case of a rape survivor.

December 28, 2018: Shashi Tharoor introduced the Women's Sexual, Reproductive and Menstrual Rights Bill which also sought to do away with the pre-condition of a medical practitioner’s opinion in case of pregnancies not exceeding 12 weeks. But the proposed bill did not tamper with the gestation period limit of 20 weeks.

May 29, 2019: Petition filed at the Supreme court by Swati Agarwal, Garima Sekseria and Prachi Vats also challenged the 20-week gestation limit saying that advancements in science and technology has made it possible to terminate pregnancies at later stages. It also asked for amendments in Section 3(2)(a) of the MTP Act on grounds that they violate Article 14 and 21 of the Constitution.

It cited a report by Guttamacher Institute and a few others which suggested that a first trimester abortion carries less than 0.5 per cent risk of major complications during hospital care. Section 3(2) of MTP Amendment bill, 2014, had also done away with the requirement of the opinion of a medical practitioner in case of pregnancies not exceeding 12 weeks.

May 26, 2019: PIL filed by Amit Sahni in the Delhi High Court asking to raise the 20 week limit to 24 weeks.

May 28, 2019: Delhi High Court issues a notice in plea to the Centre asking to extend the duration of termination of pregnancy by 4-6 more weeks in case health risks to mother or foetus.

April 24, 2019: Madras High Court issues notices to the Centre and state governments seeking their response in extending the period for termination of pregnancy, stating that it is a matter of urgency. 

August 2, 2019: Affidavit submitted by the Union Health Ministry in response to the PIL filed by Amit Sahni. The affidavit stated that draft MTP Amendment bill, 2019 has been sent for inter-ministerial discussion.

August 6, 2019: Supreme Court issues a notice to the Centre seeking its response to the PIL filed by Swati Agarwal, Garima Sekseria and Prachi Vats.

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