India's abortion law: Why it fails many women

What mars India's otherwise progressive abortion law is that it does not give a woman the sole right to make this decision regarding her body

Last Friday, the Delhi High Court said that it would not permit a 25-year-old woman to undergo medical termination of her pregnancy as the foetus was at 24 weeks of gestation. Terming it as tantamount to "killing the child", the division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad went on to say that the woman should go somewhere and deliver the child and then give it up for adoption.

"We will ensure that she is kept somewhere in a safe hospital and she can deliver and go. There is a big queue for adoption… Everything will be looked after by the Government of India or (the) government of Delhi or some good hospital. If the government does not pay… I am there to pay," Chief Justice Sharma declared.

When the US Supreme Court took the jaw-dropping decision to overturn the Roe v Wade ruling, effectively wiping out the constitutional right to abortion that women in that country had enjoyed for nearly 50 years, one had felt a stab of pride that at least Indian women had their reproductive rights protected by the Medical Termination of Pregnancy (Amendment) Act, 2021. But the words of the Delhi High Court justices — so generous and paternalistic yet firmly striking down a woman's decision regarding her own body — are enough to make one take a hard look at the nature and extent of Indian women's legal right to abortion in case of an unwanted pregnancy.

Also Read: Will not permit unmarried woman to terminate pregnancy at 23 weeks: Delhi HC

The MTP (Amendment) Act, 2021, permits the termination of pregnancy up to 20 weeks with the approval of one doctor. An abortion between 20 and 24 weeks requires the approval of two doctors, but it is available only in certain special cases — if the person is a survivor of rape or incest, or is a minor, or when there is a change in one's marital status during pregnancy (widowhood or divorce), or in cases of mental disability and so on.

There is no gestation limit for abortion if there are foetal anomalies and a medical board confirms that the pregnancy can be terminated.

In the Delhi High Court case, the woman in question was seeking an abortion at a late stage of pregnancy as her partner had dumped her after stringing her along for weeks, promising to marry her. Her counsel argued that since the law allowed recently divorced and widowed women to opt for an abortion at 24 weeks, it is discriminatory not to extend the same right to an unmarried woman whose pregnancy arose out of a consensual relationship.

To be sure, the MTP (Amendment) Act, 2021, is a vast improvement on the MTP Act of 1971, as it widens the scope of getting a legal abortion and relaxes gestational limits for it. But as is evident from this particular case, even the new and improved law is shot through with irrationality, discrimination and patriarchy's old habit of restricting a woman's reproductive choice by making it contingent on the decision of others - in this case, doctors and judges, who, by the way, have zero stakes in the pregnancy. They neither have to carry the pregnancy to term nor suffer the social, emotional and financial consequences of bringing a child into the world when one is unready for the task.

It is only right that a rape survivor or a recently widowed or divorced woman is allowed to undergo an abortion in the 20 to 24 weeks period. But must a woman suffer sexual violence or the end of wedlock to gain that privilege? She may have other compelling reasons for wanting to terminate her pregnancy at a similar stage of gestation. Can the law, in any fairness, deny her that choice? And can cheery advice urging her to disappear somewhere, have the baby incognito and then give it up for adoption compensate for not letting her exercise what is clearly her reproductive right?

There are many countries, such as Egypt and the Philippines, where abortion is banned, and others, such as Iran, Libya, Indonesia and so on, which permit abortion only when the mother's health is at risk. But despite the overall progressiveness of India's abortion law, what mars the legislation is that it does not give a woman the sole right to take this decision regarding her body. Her decision is to be green-lighted by a doctor, or a panel of doctors, and in some instances, judges, whose assessment of the case may be influenced by their biases and notions of right and wrong.

Also Read: Karnataka saw 1.35 lakh abortions in last five years

This is patently unjust. Expert opinion is valuable, of course, but a woman, in consultation with her doctor, should be free to act on it as she deems fit. When it comes to making reproductive choices, such as whether to have a baby or not, the woman's own voice must be paramount — because it is her body and her future that are at stake here.

Instead of putting barriers in the way of women wanting to access abortion, the intent of all abortion laws everywhere should be to ensure that women can avail of safe abortion services at any stage of pregnancy. According to the United Nations Population Fund (UNFPA) 's State of the World Population Report 2022, unsafe abortions are the third leading cause of maternal mortality in India, and nearly eight women die from causes related to unsafe abortions every day. Between 2007 and 2011, 67 per cent of abortions in India were deemed unsafe. Needless to say, limiting access to safe abortion pushes more women towards potentially dangerous abortion practices.

Studies around the world show that women who are forced to carry an unwanted pregnancy to term are more likely to suffer from a range of health and psychological issues such as anxiety, depression, loss of self-esteem, and so on. They are also more likely not to follow through on their aspirations and to shelve their life plans. Stigmatised by society, traumatised by their predicament, stripped of their agency, these women probably find themselves pushed to the brink — and it's not an easy ride back from there.

India ranks a dismal 135 out of 146 countries in the Global Gender Gap Index 2022. On the gender parity parameter of 'health and survival", its performance is the worst — 146th. That's another reminder that the country must do all it can to facilitate "ease of living" for women so they can lead healthy and economically empowered lives. Access to safe abortion services without the impediment of caveats and veto powers from others is an important part of the effort to enable women to direct the course of their own lives.

The MTP (Amendment) Act should be tweaked to focus more sharply on that goal.

(Shuma Raha is a journalist and author)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.