The Dichotomy Between Medical Termination Of Pregnancy Act And Women's Rights

As we reach the last quarter of fateful 2020, it remains to be seen whether the global lockdown really resulted in slowing the spread of the COVID-19 pandemic globally. However, there have been many unintended consequences due to this, especially on the ever-present human rights crisis around gender inequity and inequality. The worst hit, literally, are women and trans persons who are at the receiving end of deprivation and escalating gender-based violence.

In April 2020, United Nations projected seven million unintended pregnancies along with increase in gender-based violence in low- and middle-income countries due to the Covid-19 induced lockdown. Another study released by ipas estimates that of 3.9 million abortions which would have taken place over the three months of the lockdown, 1.85 million of them are likely to have been compromised due to a combination of factors including unavailability of MA drugs and restricted mobility.

Medical termination of pregnancy while legal in India is still restrictive. This is unfortunate as the Medical Termination of Pregnancy (MTP) Act 1971 though progressive for its time, allows safe abortion under conditions. Access to safe abortion is a reproductive right and an entitlement so, it can never be conditional.

Women’s rights often take a backseat, even when they remain at a higher risk of death and morbidities. In the context of a high burden of pregnancy related deaths, according to NFHS-4 data, 133 for every 100,000 cases in India, a progressive MTP act that support woman’s choice is the need of the hour. The current Act in existence is conditional and does not allow women to exercise their reproductive rights.

The proposed MTP (Amendment) Bill 2020 has some progressive components. The limit of 20 weeks is now expanded to 24 weeks; length of the pregnancy is not applicable in cases of substantial foetal abnormalities and significantly it is now expanded to include unmarried women.

However, there are sections and provisions which needs to be investigated immediately.

Making first trimester Abortions unconditional

Women face violence and particularly sexual violence on a regular basis. According to NFHS-4 data, 24% married women (15-49 years) reported spousal physical or sexual violence in last one year. Under such circumstances, women should not have to force fit their choice to access a safe abortion procedure in these conditions as outlined by the existing MTP act and perpetuated even through these amendments. Given that the procedure is now safe and simple, abortions should be available as a woman’s choice.

Access to Safe Abortions in India is through a health care legislation. Unfortunately, it’s not enshrined in a rights context. Thus, like all other health care procedures, first trimester abortion care should be on demand, free of all conditions. Only then, women can exercise their right to choose.

Creation of Medical Boards

It has been stipulated that the medical boards will need to be established and should include (i) a gynaecologist, (ii) a paediatrician, (iii) a radiologist or sonologist, and (iv) any other number of members, as may be notified by the state government. However, these boards will serve as a detriment due to the dearth of medical experts. In a report, Centre for Policy Research indicates that in India where a large population lives in rural region, 68% of the doctors in these regions don’t have formal medical education degrees, while 24% are qualified Ayush practitioners and only 8% are MBBS degree-holders.

In fact, doing away with medical boards and recognizing primary provider for safety assessment for terminations up to 24 weeks would help the persons get right consultancy and treatment on time.

Accessible and safe abortion procedure for all – Mid level providers

World Health Organization has recognized medical abortion in a tablet form as a safe procedure and has proper guidelines for the training of mid-level providers for medical abortions. These are already followed by several countries to be able to cater to their short-staffed healthcare system.

MTP Bill can accommodate qualified and trained nurses as well as Ayush doctors as abortion providers to further attain its objective of ensuring access to safe and affordable abortion services even in the rural areas. There is ample evidence from studies in India and countries around us that Mid-level providers can safely be trained to provide medication abortions.

Gestation period

While it is commendable that the Bill proposed to expand the gestation from 20 weeks to 24 weeks and further length of the pregnancy would not be applicable in cases of substantial foetal abnormalities. However, this again can be limiting. There are multiple cases of delay in seeking access to pregnancy termination due to several reasons including but not limited to sexual assault on a minor, delay in recognizing the pregnancy, intimate partner violence, and difficult family circumstances. Due to exclusion of abortion by choice in the current law, these women end up being exposed to unsafe abortions, putting their health and life at risk. By completely removing upper gestation limit for abortion for all the pregnant persons, seekers will be saved from additional mental trauma.

Amended MTP Bill should also reduce the permission for an abortion from two doctors to one since the termination of pregnancy can easily be conducted by just well-trained practitioner, as defined under the Act already.

In 2021, we would be observing 50th anniversary of a progressive MTP Act. However, even today, abortion has remained conditional and thereby is largely a constricting legal instrument. Ideally the amendments should strengthen the MTP Act by ensuring that Provisions of this Act should be in addition to, and not in derogation of the provisions of any other laws. Further, it should be stipulated that in case of any inconsistency, the provision of MTP Act should have overriding effect on the provisions of any such law to address inconsistency. Women’s health and rights in general are a global concern. By making the bill progressive and contextual, India can set a global example.

(Views are personal)

*Dr. Kalpana Apte, CEO, Family Planning Association of India and Campaign Advisory Group member – Pratigya Campaign for Gender Equality and Safe Abortion.