Why women in Kerala are finding it tough to terminate unwanted pregnancies

In December 2023, a 12-year-old girl and her parents approached the Kerala High Court, requesting to terminate her pregnancy, resulting from an incestual relationship with her minor brother. The court however, rejected the plea, noting that the foetus was 34 weeks along and fully developed, making termination unfeasible or impossible.

The court further stated that the child must be allowed to be born through either a caesarean section or a normal delivery, leaving the method to medical experts due to the victim-mother’s young age. Initially, the medical board recommended termination factoring in the girl’s tender age and psychological trauma. However, it also acknowledged the increased risks of morbidity and mortality for both the mother and the foetus due to prematurity and complications inherent in termination procedures.

Three months later, in another case, the same court ruled in favour of a woman who sought medical termination of pregnancy following her divorce from her husband, who was also the father. The court observed that a woman could cite a ‘change of circumstances’ to seek a medical termination of pregnancy while divorce proceedings were ongoing. Justice Devan Ramachandran’s bench felt that ‘marital status’ should not be solely interpreted as a legal concept under the Medical Termination of Pregnancy Act; rather, it must be considered in terms of the actual circumstances.

It was in the landmark judgment of X vs. Principal Secretary of the Health & Family Welfare Department in 2022, the Supreme Court of India provided clarification on the interpretation of the Medical Termination of Pregnancy Act breaking new ground and advanced modern jurisprudence on abortion laws to align with evolving social norms and non-traditional familial relationships.

This particular case was of a 25-year-old unmarried woman who approached the Delhi High Court seeking permission to terminate her 22-week pregnancy, which resulted from a consensual relationship. However, the High Court denied her request, citing the provisions of the Medical Termination of Pregnancy Act that, only married women are permitted to undergo abortion after 20 weeks, and the woman's situation did not fall under any clauses outlined in the MTP rules of 2003, such as mental anguish, rape, or health complications.

A week later, the Supreme Court modified the High Court's order, allowing the appellant to terminate her pregnancy. However, this permission is contingent upon a Medical Board established under the All-India Institute of Medical Sciences (AIIMS) confirming that the termination can be conducted safely without posing a risk to the woman's health.

The Medical Termination of Pregnancy Act (MTP Act) in India governs legal abortion circumstances, providing exceptions to criminalization under the Indian Penal Code. The 2021 Amendment Act extends the gestational limit from 20 to 24 weeks for specific groups, including survivors of rape, minors, those with disabilities, and individuals in emergency situations. Notably, the Amendment Act replaces ‘married women’ with ‘any woman’, broadening access to abortion irrespective of marital status.

However, the Union government holds the view that the reproductive rights are subject to a legal regime and that a mother’s right cannot be allowed an absolute march over an unborn child’s right to life when the state was obligated and willing to provide all possible medical, psychological and social assistance, including adoption, according to an affidavit filed by it in the Supreme Court.

Access to abortion is a highly debated issue not only in India, but worldwide, often clouded by misinformation regarding the consequences of restricting access. However, preventing women and girls from accessing abortion does not eliminate the need for it.

Courts across the country are inundated with such cases, each yielding contrasting judgments. However, due to the urgent and time-sensitive nature of these cases, involving the viability of the foetus, many petitioners find themselves compelled to carry their undesired pregnancies to term, but a majority of them choose not to approach the legal system and resort to unsafe methods of terminating their pregnancies.

“In India, the legislation primarily revolves around population control measures, aiming to protect doctors performing Medical Termination of Pregnancy procedures rather than safeguarding women’s bodily autonomy. Unlike the ongoing pro-life versus pro-choice debate in the US and other countries, Indian law leans somewhat liberal, and courts have occasionally issued progressive rulings. However, the challenge in India lies not within the law itself but in its interpretation within a conservative society,” says Dr. Arathi PM, director of the school of gender studies, Mahatma Gandhi University Kerala.

“Despite abortion being a legal right, rural India faces a paradox as it lacks facilities for safe abortion services. Additionally, the law allows for conservative interpretations, and private hospitals, often managed by religious entities, are hesitant to provide such services. The public sector suffers from infrastructure deficiencies, leading to overcrowding,” says Dr. Arathi.

Abortion can be a challenging process in Kerala, not only in cases involving untenable pregnancies that require legal remedies, but also in ordinary couples. This is surprising given Kerala's reputation for high health standards and positive statistics regarding maternity and child-friendliness. Not many hospitals in Kerala provide abortion services, even if the couple has very tangible reasons for not having a baby.

Santhosh and Jalaja, a mid-career academic couple in Kerala in their early forties with two children aged 14 and 10, found themselves facing an unexpected pregnancy last year. Despite their desire for an abortion, they encountered difficulty finding a gynaecologist willing to perform the procedure after consulting seven doctors across reputable private and public hospitals in the city.

“We tried reaching out to these doctors, some through recommendations from friends, but couldn’t find any help. Each doctor we met seemed more like a family counsellor, sticking to strict Catholic beliefs. One even told us abortion was like committing murder. Despite explaining Jalaja’s health risks, they weren't open to listening. In the end, we had to travel about 40 kilometres out of the city to a taluk hospital to do an MTP. The doctor there prescribed the necessary tablets and told us where to get them. Later, we found out the medical shop was owned by the same doctor’ Santhosh told The Federal

Sarah, a senior journalist in her late forties, has a different story to share. Back in 2001, she found herself facing an unexpected and unplanned pregnancy at a pivotal moment in her life. At the time, she and her partner were all set to embark on a fellowship abroad.

“We weren't prepared for a child, especially with our plans to pursue a fellowship abroad. Desperate for a solution, we reached out to a doctor whom I knew from my professional contacts as a source and subject expert. After much persuasion, she agreed to help me undergo a medical abortion. It's quite interesting how things change over the years. Twenty years later, when I approached her for a similar issue regarding my niece, her response shocked me. She expressed that she would never consider such a procedure again and emphasized that she believed it to be a cardinal sin. It's worth noting that she's a highly respected gynaecologist and obstetrician in the city,” Sarah said.

Although healthcare providers are crucial in providing abortion services, the reluctance of some to offer these services poses a serious challenge for pregnant women who find themselves in difficult circumstances. Many international studies clearly state that unsafe abortions are a major public health issue and a significant violation of human rights. In countries where abortion is regulated by law, access to safe abortion care may not always be available to women who need it.

“In a study where we conducted 150 telephonic surveys in hospitals in Kerala, posing as abortion seekers with medical reasons like haemophilia and social reasons like divorce, we found that regardless of the reason, there was a consistent anti-abortion stance among many hospitals,” says Dr. Arathi PM. “Government hospitals generally fared better, but they often lacked the time to provide adequate support. Hospitals managed by Christian organizations exhibited a condescending tone, with some even going so far as to call back and assert that abortion is a sin. There is a stigma associated with doctors who perform abortions, leading to a classification where they are considered lesser beings. This issue is not solely religious but also ethical, with the unclear concept of when life begins playing a significant role. Even atheist doctors may harbour these beliefs,” adds Dr. Arathi.

Dr. Veena JS, an assistant professor of forensic medicine and toxicology at PSG Institute of Medical Sciences, Coimbatore, believes that the inadequate training provided to doctors is a key factor contributing to the poor perception of Medical Termination of Pregnancy (MTP) among the medical community. According to her, numerous studies conducted from 1970s to 2014 consistently indicate that doctors were generally opposed to induced abortion due to moral beliefs and societal stigma.

“Until recently, there was no specific training for teachers who write textbooks, resulting in a lack of comprehensive coverage of topics such as the MTP law in forensic medicine textbooks. As a result, teachers do not provide training on how to positively interpret the law through textbooks. This contributes to the passive attitude exhibited by doctors towards MTP,” says Dr. Veena.

“Throughout my career, I've encountered only one doctor who isn't reluctant to provide MTP services to needy women. His primary concern is ensuring compliance with the legal gestational limit prescribed in the law,” adds Dr. Veena.

As access to MTP services becomes inaccessible, several related issues have arisen, with excessively high rates for the procedure being the primary concern. Additionally, illegal agencies acting as middlemen between hospitals and clients have emerged. Moreover, the nexus between medical pharmaceutical distributors and some doctors further exacerbates the problem.

“There are women working in Middle Eastern countries who often return to their native places seeking MTP services. Despite having to prove that the father is their own husband, they are often denied these services. The cost of abortion varies significantly, ranging from Rs 50,000 to Rs 100,000 in 2021 for operative procedures like D&C. I have firsthand knowledge of hospitals engaging in such practices. Additionally, there are unethical rackets that charge commissions for arranging MTP services. This exploitation within the medical community is deeply concerning,” says Dr. Veena.

Many studies conducted globally have found that a vast majority of healthcare providers, including nurses and midwives, believe that women should give birth and provide care for their children. They view induced abortion as terminating motherhood. This perception, combined with the prevailing patriarchal value system of society, contributes significantly to the unfair atmosphere regarding medical termination of pregnancies among Indian women.

“Our study has revealed that hospitals often treat women seeking abortions poorly, providing undignified service. There have been instances where anaesthesia is not administered, with the rationale being that the woman should experience the pain. It is imperative that we advocate for the right to dignified abortion services,” states Dr. Arathi PM.

Access to safe MTP services varies widely, with marginalised communities encountering significant obstacles based on socioeconomic status, caste, and religion, impeding equitable reproductive healthcare access. Despite its progressive reputation, neo-conservative ideologies persist in Kerala too, shaping public discourse and policymaking, notably on abortion rights uncovering the roots, expressions, and consequences of neo-conservatism in Kerala’s reproductive health policies.

“When discussing these issues in medical classroom, I've noticed that girls tend to be more assertive, while boys often harbour the belief that they have control over their wife's body. Surprisingly, even in a progressive state like Kerala, abortion rights are not adequately addressed in the government's women's policies, even when the left government is in power,” shares Dr. Veena.

The experience of a young couple in Kerala, where one partner is an allopathic doctor pursuing post-graduation in a medical college and the other is undertaking post-graduation in Ayurveda, somewhat underscores the essence of the story.

When the young doctor became pregnant with her boyfriend, the immediate reaction from the authorities was to suspend her from the class. Not to mention, they were unable to obtain an MTP service as they were not legally married, but only in a relationship. The couple had to file an official complaint to terminate their pregnancy and have her reinstated on the rolls.

(Identifying markers of the subjects has been changed entirely in this story to protect their privacy)