By Belinda Munyeza.
Abortion law in India dates back to the 1800s. The first definitive law regarding the legality of termination in the country was implemented in 1898. Since then, some changes have been made to Indian abortion law, the most notable being the Medical Termination of Pregnancy Act, introduced in 1971. This law, however, has discrepancies that have caused confusion and uncertainty about the legality of abortion in the country. These discrepancies have also led to discrimination against those seeking abortions in India and have resulted in termination services becoming inaccessible.
The first abortion law stemmed from a legal act established in 1861 and the Indian Penal Code established in 1862 [1]. However, the specific law on abortion itself did not come to pass until 1898. Under this law, the termination of pregnancy was made punishable for both the person seeking to abort and the person performing the procedure. The year 1971 marked a big change for abortion law in India, but continued stigma and general disapproval from medical practitioners has left many women in the dark about the legality of abortion.
In the 1960s and 1970s, around the world, laws surrounding the termination of pregnancy began changing [2]. In Europe and the Americas, abortion was being legalized. Subsequently, India followed suit. By the 1960s, some doctors in India started to worry about the increased health risks that some women were facing because of abortion procedures performed by unskilled practitioners. While not all women receiving these abortions suffered health risks, those that did suffered severely because of a lack of regulation of these procedures.
Laws that allow for abortions often result in better regulated services. More options are available, and there are fewer complications involved. In India in the 1960s, where these options were difficult to access and technology was far less advanced, doctors realized that to increase women’s access to safer methods of termination of a pregnancy, abortion needed to be legalised.
In 1966, the Indian government-appointed Shah Committee recommended legalising abortion. This was a decision they made upon carrying out a thorough analysis of what legalisation entailed on a social, cultural, medical, and legal level. However, the reasons for this recommendation may have been motivated more by a governmental desire to implement population control measures than the need to establish women’s access to safer abortions.
Still, in 1971, the Medical Termination of Pregnancy (MTP) Act was passed [3]. This act made it legal to abort in all of India, except for the states of Jammu and Kashmir. The law still remains this way, although there have been a few amendments to specific stipulations to the law and its regulations over the years.
How is Abortion Law in India Regulated?
While the MTP Act allowed it to become legal to carry out an abortion procedure in most of India, it did so with a few stipulations, which has left room for discrimination by medical practitioners. For instance, Indian law considers termination legal if it is done within a gestational period of 20 weeks. It also requires the approval of a second doctor for pregnancies above 12 weeks. Whether the law considers any individual case of abortion legal or illegal in India depends on the reasons for the pregnant woman seeking a termination, with some practitioners discriminating based on a woman’s marital status and socio-economic background.
Other restrictions with regards to the MTP Act are placed on the person performing the abortion procedure, which is evident in how it allows only a physician to perform an abortion, while other health-care practitioners, regardless of how capable they may be, are not permitted.
Ramifications of the Discrepancies in Abortion Law in India
Although there are valid reasons for some of the abstract stipulations set forth in the MTP Act, there have been some unintended and dire consequences for the women involved, some of which have resulted in unfavorable outcomes.
Determining whether an abortion is legal in India based on the woman’s reasons continues to be an issue for many. This stipulation was initially put in place to curtail abortions that directly resulted from sex preferences. Cultural practices in India lean towards male babies being of more value, and this has caused many women to seek abortions solely because they are having a girl. Since the 1980s, the nation has grappled with an uneven distribution of the sexes, and a 1994 act that inhibited prenatal determination of sex was implemented in an attempt to address this issue.
In 2002, India went even further by amending the MTP Act to make it illegal to carry out an abortion based on sex selection. The issue, however, is that the law requiring women to justify their abortions creates stigma and allows for discrimination based on the practitioner’s discretion, which reduces the accessibility of safe terminations. When women feel they have to prove their reasons are valid, they are less likely to seek legal abortions.
In the 1990s, for every legal abortion that took place, there were up to 11 illegal ones. And while not all illegal abortions are unsafe or a health risk, those that do pose health risks could be much better mitigated if legal termination was more accessible.
The requirement of a second doctor’s approval for second-trimester pregnancies makes it more difficult for women in some areas to access safe abortions. In rural areas of India, for instance, where physicians are not so readily accessible, having to get not one, but two doctors’ approval to terminate is difficult.
Overall, the MTP Act does allow for safe and legal termination to occur in India; however, the act does not seem to be fully designed for the benefit of women’s health, especially when we consider that its creation was potentially done with women’s health being a secondary concern and population control being the main concern. The numerous stipulations associated with Indian abortion law have not helped to reduce the stigma or difficulty of access that still exists. While abortion is legal in India, the country definitely has a long way to go to ensure the best and safest resources are available to anybody wishing to terminate a pregnancy.
Sources
[1] Siddhivinayak, S Hirve. “Abortion Law, Policy and Services in India: A Critical Review.” Reproductive Health Matters, vol. 12, no. 24, 2004, pp. 114-121, doi.org/10.1016/S0968-8080(04)24017-4. Accessed November 2020.
[2] Louise, Finer and Johanna, Fine. “Abortion Law Around the World: Progress and Pushback.” American Journal of Public Health, 2013 doi: 10.2105/AJPH.2012.301197. Accessed November 2020.
[3] Katke, Rajshree. “MTP and PCPNDT Act.” Playing by the Rules, 2015, pp. 1 – 12, www.researchgate.net/publication/272420540_MTP_and_PCPNDT_Act. Accessed November 2020.