How the new abortion law fails to give women the absolute right over their bodies

When 24-year-old Neha and her partner Naveen (names changed) got pregnant, they approached a private hospital for abortion. The hospital initially refused to do it and asked whether this was just fun and they would marry someone else later.

Later, they demanded ₹25,000 for the procedure. Unable to afford that amount, Neha and Naveen, who are medical students, went to the government-run Thrissur medical college.

The junior resident doctor there refused abortion and gave her a prescription as follows:

“Came for MTP, unmarried;
1) All investigations
2) Report with parents of the girl (father or mother) for MTP and admission”

Despite being a 24-year-old woman and a medical student, Neha was denied her right to abort the foetus and had to face humiliation as though she had committed a sin.

Neha had this experience just two weeks after the new law—The Medical Termination of Pregnancy (Amendment) Act 2021—came into effect with the clearance of the Parliament and the assent of the President of India.

The Act gives the right to seek abortion to unmarried women too, as it replaced the term ‘married woman and her husband’ in the original act of 1971 with ‘a woman and her partner’.

However, several hospitals and doctors refuse to change.

At the time of writing this report, Neha and her partner were looking to raise money to get the abortion done at the private hospital.

No different for married women

Is it any better for married women? Probably not. Seena (name changed), assistant professor of English in a private college in Kerala, wanted to terminate her second pregnancy as she did not want to have a second child for the time being.

Despite being a clear case of contraception failure, Seena was rejected by two hospitals and had to undergo a humiliating experience as if she had been committing an offence.

“I went to a private hospital in my home town. The doctor was highly reluctant even to listen to me. I tried to explain that I had been using Copper T and it was a case of contraception failure. She said she would take the Copper T out through a surgical procedure and there is a chance for terminating the pregnancy along with it, but she said she will certainly not do it if there is a heartbeat for the foetus,” says Seena.

She rung up another hospital from where she got a very harsh reply at the front office. “They told me that they would only take cases of women who took pills for abortion and developed some complications. This is literally an attitude that pushes women into unsafe methods to terminate pregnancy,” says Seena.

The new MTP Act

The much debated MTP Amendment Act widens the realm of medical termination of pregnancy. Key among them is the extension of the gestation period for abortion from 12 weeks to 20 weeks.

Termination of pregnancy after 20 weeks and before 24 weeks would be done on the advice of two doctors. This was not allowed under the previous law.

Pregnancy over a period of 24 weeks could be terminated only upon the advice of a medical board if substantial foetal abnormality is found. This also was also not allowed according to the previous act of 1971.

Is the new law progressive?

Despite having forward looking provisions, many think that the law is still not progressive.

“The MTP Act has never had a right-based approach. It came as part of a family planning programme. It is a provider-control act rather than one empowering a woman to exercise her choice,” says Dr Shubhasri B, steering committee member, Common Health, a coalition for reproductive health and safe abortion.

“Even if there are socially acceptable reasons, still there is a medical board to decide.”

The amendments don’t change the paradigm of the act. Despite extending the gestational period and widening the scope to include unmarried women, it still demands spousal consent and socially legitimate reasons for the termination of pregnancy, such as pregnancy out of rape or having foetal abnormality.

“It is still not a matter of right. It only brings another group—the medical board—to the earlier list of authorities empowered to take decisions over a woman’s choice,” says Dr Mala Ramanathan, working editor, Indian Journal of Medical Ethics.

According to a 2015 study conducted across six states in India, a majority of the abortions happen through unsafe methods and outside the realm of authorised healthcare institutions under the supervision of a medical practitioner.

Most abortions happen by consuming pills provided at the chemist’s. There is no idea whether these women get proper advice on how to use the pills for the termination of pregnancy, nor any record of follow-up on whether these women had any post-abortion complexities which might lead to further problems concerning reproductive health.

The social taboo around abortion remains a major hindrance.

“The morality concerns grounded in and out of religion is a very strong reason for making abortion inaccessible to those who deserve it. I know several doctors who are very determined that they wouldn’t provide MTP service unless on medical grounds, no matter what the law says,” a gynaecologist and assistant professor at a government medical college in Kerala told The Federal, adding that this pushes many women to rely on drugs purchased from the chemist’s and to administer the same on ‘Google knowledge’.

“Even doctors use terms as ‘illegal pregnancy’ to refer to pregnancy of unmarried women. The fact is that there is nothing called legal or illegal in the realm of law.” says Dr Mala Ramanathan.

Even after the amendment, the control lies very much with the provider (doctor/hospital). “It is the medical practitioner who has the final say on abortion, not the woman who wants it,” says Dr Subhasri who is also an obstetrician gynaecologist.

A woman’s right over her body still remains an alien concept, according to many doctors and experts who stand for a rights-based approach in matters regarding reproductive health.

“Let alone abortion, women do not have the authority even to take an independent decision of their own on contraception and sterilisation. I have often come across women waiting for the consent not only of husband, but his mother and other family members even to insert copper T,” says Dr Indira, gynaecologist at a private hospital in Kochi.

The infrastructural requirements specified in the law makes the availability and access to abortion service further restricted. For administering abortion service, any healthcare facility requires licence authorised by the district medical officer. The non-availability of licenced services and competent doctors make abortion service highly inaccessible to women in rural areas in India.

There are doctors and healthcare facilities taking a deliberate choice not to take licence for MTP. “Institutions under religious establishments deliberately keep away from taking licence. It makes it easy for them to deny the service. Apart from religious and moral reasons, there are other factors as well,” says Dr Mala Ramanathan, who adds that abortion is seen as a ‘dirty job’ and those who are ready to do it are considered greedy to make money. This is yet another factor causing resistance to abortion within the doctor’s community, according to her.

“Women are heavily dependent on the private sector for abortion services. One reason is confidentiality. The public sector might not assure the privacy and confidentiality they wanted,” says Dr Subhasri.

On the other hand, there is no institutional mechanism to regulate and control the private sector which makes abortion service a money making business.

Experts unanimously agree that there is a complete lack of transparency with regard to the abortion service happening in the private sector.

On one side, the privacy of the woman going for MTP needs to be guarded, on the other, the secrecy surrounding the abortion service in the private sector makes the women extremely vulnerable which often results in financial exploitation.