The Supreme Court on Monday denied giving permission to a married woman who wanted to terminate her over 26-week pregnancy. According to the apex court, the All India Institute of Medical Sciences (AIIMS) Medical Board had found “no substantial foetal abnormalities” and a pre-term delivery carried the risk of being born with physical and mental deformities.
Reportedly, the woman had approached the top court seeking permission to terminate her pregnancy due to her inability to take care of the child due to post-partum psychosis and other health issues.
Post-partum psychosis is a rare but serious condition and it involves symptoms that include delusions or hallucinations and can put both the mother and her child in danger. According to experts, the onset of post-partum psychosis is sudden and patients can also develop symptoms of paranoia, mood swings, and confusion. Studies suggest post-partum psychosis is rarer than post-partum depression. The petitioner is currently undergoing treatment for psychosis and her pregnancy went undetected due to lactational amenorrhea.
On October 9, the Supreme Court agreed to her plea, but two days later, a two-judge Bench of Justices Hima Kohli and B.V. Nagarathna delivered a split verdict after the government presented that the foetus was viable and had a heartbeat. During the hearing, Chief Justice of India DY Chandrachud observed that India is far ahead of other countries with respect to abortion laws. However, the case and the verdict have stirred up the debate about whether a woman has autonomy over her body or not.
Status of Abortion in India
In India, abortion was illegal and a woman could face three years of imprisonment and/or fine under Section 312 of the Indian Penal Code, 1860 if she tried to abort her foetus.
The Medical Termination of Pregnancy (MTP) Act, 1971 came into existence in order to regulate abortion in the country. According to experts, this law was put in place to prioritise medical reasoning while allowing these procedures and avoid religious or ethical objections. The law allowed abortion up to 20 weeks and later in 2002 it included the use of the then-new medical abortion pills, mifepristone, and misoprostol.
In 2021, the law was amended to allow abortions to 24 weeks for special categories of pregnant women such as rape or incest survivors, with the prior approval of two registered doctors.
According to the amended law, in cases of foetal disability, there is no upper gestation limit for abortion as long as it is approved by a medical board of specialist doctors set up by the governments of states and union territories. The historic aspect of this amendment was the inclusion of unmarried women within the ambit of the act. Prior to the 2021 amendment, abortion was legally sanctioned solely for married women under any circumstances. Although the amendment broadened the criteria by which women could access abortion services, challenges still exist.
“During a recent study by us (Foundation for Reproductive Health Services, India), we found that 95.5 per cent of women were unaware of the amendment to the Medical Termination of Pregnancy Act which increases the gestational age from 20 to 24 weeks in cases of substantial foetal abnormalities. While this new amendment is a positive step in the direction, much is left to be done to empower abortion seekers across the country,” Debanjana Choudhuri, Director, Planning & Partnerships, Foundation for Reproductive Health Services India (FRHSI) told Financial Express.com.
According to Choudhuri, despite some noteworthy advancements in India’s reproductive healthcare services in recent times, there are still considerable obstacles to overcome.
“Rural areas, in particular, grapple with challenges such as insufficient infrastructure, a scarcity of healthcare facilities, and restricted availability of non-judgmental services. Moreover, socio-economic disparities further exacerbate the issue, with marginalized communities encountering even more significant barriers,” she revealed.
Accessibility of Abortion Services in India
Abortion is legal in India, however, it doesn’t mean that it is uniformly accessible across the country. According to government data, for the more than 370 million women of childbearing age in the country, India just has 10,782 public health facilities that provide abortion up to 12 weeks, and merely 4,213 public health facilities that can abort up to 20 weeks.
Choudhuri maintains that the accessibility of abortion services in India presents a stark urban-rural divide. In urban areas, there is relatively better access due to the presence of well-equipped healthcare facilities, however, rural India faces significant challenges, she maintained.
“Limited healthcare infrastructure, pervasive stigma, and inadequate awareness hinder rural women’s access to safe abortion,” she told Financial Express.com.
According to a 2023 paper in Economic and Political Weekly, abortion has long been a divisive issue in the rights debate particularly when it is presented as a conflict between a woman’s right to choose and an unborn child’s right to live.
When an abortion seeker is not able to access safe abortion facilities due to social stigma and other challenges, they may opt for unsafe methods that can put their life at stake. It is noteworthy that unsafe abortion remains India’s third leading cause of maternal mortality, with eight women dying every day. Studies suggest approximately 800,000 unsafe abortions are carried out in India annually, and most of these are provided to people from marginalised communities.
The paper highlights that “unsafe abortion can lead to long-term issues detrimental to women’s health and psychological well-being, in addition to acute health risks and even fatality.” Experts often emphasise that reproductive rights need to be understood through the lens of the human rights approach.
“They are based on the idea that everyone has the right to access healthcare and women should have the autonomy to make their own decisions. Unwanted and forced pregnancies due to lack of family planning, fatalities during pregnancy and delivery, complications from unsafe abortions, early marriages, and coercive unsafe sex are examples of the abuse of reproductive rights. Women’s intrinsic dignity and independence are denied because of the societal undervaluing of their fundamental existence. Family members often make the most important decisions impacting women’s health, education, property, and marriage,” the paper revealed.
Social challenges surrounding abortion in India are multi-faceted. “Stigma and deeply ingrained cultural norms can lead to judgment and discrimination against women seeking abortions, perpetuating silence and secrecy. Lack of awareness about reproductive rights and available services also plays a crucial role,” Choudhari explained.
Still a long way to go
She reiterated that although they welcome that the marriage clause has been dropped in the MTP Amendment Act 2021, it has not necessarily translated into action or access.
“The prevailing stigma and taboo around abortion multiplies when an abortion seeker is unmarried. The behavior netted out to an unmarried abortion seeker is vastly different from the desired social construct of marriage. In the heteronormative construct, abortion seekers get a better reaction than the others. Abortion seekers, particularly young adults, still go through unsafe routes to undergo an abortion. This is primarily because there is no conversation that reinstates their agency, that emphasizes the need to treat abortion as healthcare and a right to all,” She told Financial Express.com.
The law is yet to include the LGBTQ community in the purview of the Act. As the act uses the term ‘pregnant woman’, it disables the inclusion of the LGBTQ community within its scope.
It is noteworthy that the final authority over the gestation period resides with the state and the decision of termination is executed through medical boards. A study conducted by Centre for Justice, Law and Society (CJLS) and Jindal Global Law School reveals that the need for specialised doctors for the constitution of medical boards makes pregnancy termination service inaccessible to women. The study also reveals that there is a serious shortage of obstetricians and gynecologists. Moreover, at-home abortions were twice as many as public-sector abortions in some states of the country.
In states like Tamil Nadu, Arunachal Pradesh, and Gujarat there is an almost complete absence of specialists such as gynaecologists and obstetricians, paediatricians, and radiologists, especially in rural areas, the study finds. Since the MTP amendments required these three specialist doctors to be part of the board, along with other members that the State/UT may appoint, constituting the board is challenging in most parts of the country.
However, the World Health Organization (WHO) has strongly recommended that states eliminate such requirements from their legal and policy frameworks as it can act as a barrier to accessing safe abortion services.
A 2019 study published in the British medical journal BMJ Global Health unveiled that approximately two-thirds of abortions in India are categorised as unsafe.
Experts maintain that abortion laws in India have undergone a transformation to prioritise an abortion-seeker’s well-being and rights. However, a lot needs to be done to make women aware of their reproductive rights, and increasing access affordable and safe healthcare services.