How stigma over abortion denies women important legal right

The legal aspect and the woman’s life condition in general is ignored with doctors mostly taking a moral stand when a woman approaches them for an abortion.
Pregnant woman
Pregnant woman
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A young woman in her 20s kills her months-old baby. She kills the infant one night with a knife and sleeps beside it. A result of depression, which her husband and mother-in-law, the only adults who were with her after the delivery, failed to recognise. It was an unwanted pregnancy for the couple. But her husband, who is abroad, puts the blame on her for not rightly assessing the ‘safe period’. She goes alone to a doctor to get an abortion, only to be humiliated by the latter who lectures her on how abortion is not morally correct.

The above is a narration about the plight of a woman in a short film named Aval, directed by Adarsh Kumar Aniyal and produced and co-written by Dr Veena JS. A specialist in forensic medicine, Dr Veena has been vocal about women’s rights, including the right to reproductive freedom.

                                               A scene from Aval 

Recently, a woman who went through a similar plight in real life wrote to the Kerala government’s gender advisor, S Anandi. “My name is Rekha (name changed). I’m the mother of a two-year-old. I got pregnant in March when my child was 1.5 years old. I started using Copper-T six months after my delivery. We had decided not to have another child and so decided on an abortion. We went to two private hospitals. One hospital agreed to do the abortion, but they said it’ll cost Rs 30,000… This was beyond our capacity during the time of a lockdown. Then we went to the General Hospital in Ernakulam, but the doctor on duty asked us why we were doing this sin,” read the email.

“We were told that the foetus is healthy and we will not get a healthy baby if we try again… For one week we had to visit hospitals with a 1.5-year-old kid in tow when the whole nation was in a lockdown. This put us under a lot of mental pressure. We went to hospitals after a contraceptive method failed, believing that abortion is the right of a woman. I had to fight a lot to get the abortion done. This is the general attitude towards women who seek abortion. This affects the lives of scores of women in various ways,” the email further read.

Stigma based on ‘moral’ aspect has persisted for years

Dr AK Jayashree, a specialist in community medicine and an advocate of gender equality, has been speaking up for the legal right of women to abortion for decades. In her experience, the stigma over abortions has gotten worse over the years. Even the Medical Termination of Pregnancy (MTP) Act, she says, was enacted as a measure to control population, not as a right for women.

“In the past, septic abortions – infections of the placenta and previable foetus – were done by untrained people, which at times proved fatal for women. When I was working in gynaecology casualty, I’ve seen many women who opted for septic abortions almost in a dead state. With the law in force, abortions can be done by trained doctors. Ideally, family planning units should have trained doctors,” Dr Jayashree tells TNM.

Not recognised as legal right

Dr Jayashree points out that even now women are not aware that abortion is legal and a woman’s right. “When women get pregnant in a patriarchal society even against their will, before or after marriage, her right is not recognised even in that,” she says.

There are provisions in the law that say that one can opt for abortion when there is maternal danger, contraceptive failure and on humanitarian grounds.

“However, in most cases except when there is maternal danger, doctors refuse to do an abortion when it’s presented as the woman’s need, without considering the legal provisions,” she says.

No, husband’s consent is not needed

In general, doctors ask for the consent of the husband when a woman approaches them alone for an abortion.

Advocate J Sandhya, a lawyer based out of Thiruvananthapuram who works for women’s rights, realised that even legal provisions do not help women when two years ago, a woman in her 20s approached her asking for an immediate divorce. The woman wanted to file a divorce petition in one day so that she could get the case number to be submitted to a hospital. The doctors at the hospital had sent her back for not having the consent of her husband when she approached them with an abortion request as she had a one-year-old child and it was an abusive marriage.

“She was a woman who had passed Class 12 and had a job. She had been subjected to domestic violence. That had made her mentally detached in the marriage and already having a one-year-old child made her decide on abortion. The first baby was born in an ESI hospital and when she approached that hospital for abortion, the husband went there and made threats. When she approached a police station with a complaint, she was advised to be an 'obedient' wife. At the Women’s Commission too, she was given the same advice – be an obedient wife to have a good family life – that too in front of her husband. This made the husband feel victorious and he declared that she won’t get justice wherever she goes. And she was turned away by doctors demanding the husband’s consent,” Sandhya tells TNM.

So, Sandhya checked the law thoroughly. “No, the law doesn’t say that the consent of the husband is needed. The consent of a guardian is needed in the case of minors or if the woman is mentally ill,” she adds.

Dr Jayashree says that she knows numerous stories of women being denied abortion because they did not have the husband’s consent. She wonders how much more hostile the situation would be for unmarried women or sex workers seeking an abortion.

Abortion is legal even beyond 20 weeks

In the case of minors, Sandhya further says, the pregnancy is mostly identified after 20 weeks as the girl might think of it as irregular periods, which is usual in the initial years of menstruation. And when the pregnancy is beyond 20 weeks, the doctors or the medical body in hospitals will demand High Court consent, which again places the women and, in the case of minors, their families in a tough spot.

Sandhya has seen three such cases of minors during the lockdown period. There was a case from a married woman too who was refused abortion as she was 20 weeks and a day pregnant. “The woman got pregnant after 10 years of marriage, but wanted an abortion as the follow-up examinations diagnosed some abnormality,” Sandhya says.

The MTP Act and proposed amendments

The Ministry of Health and Family Welfare introduced the Medical Termination of Pregnancy (Amendment) Bill, 2020, which was passed by the Lok Sabha on March 17 this year and is now due to be discussed in the Rajya Sabha. The Bill provides amendments to the MTP Act, 1971 to increase the upper limit for termination from 20 to 24 weeks for certain categories of women. However, these categories are not defined in the Bill. The Bill also proposes removing the limit in the case of substantial foetal ‘abnormalities’ – abortions can be done at any stage of the pregnancy if the foetus is diagnosed with abnormalities that are likely to result in disabilities – and constituting medical boards at the state level.

Another proposed amendment that is part of the Bill is the expansion of access to abortion for unmarried women in partnerships. It has been suggested that the phrase “by any married woman or her husband” is replaced with “any woman or her partner” in the relevant clause. Currently, in the case of unmarried women, the Act allows abortion only if the pregnancy is harmful to the woman’s life, physical or mental health; if there is a chance that the child may suffer from physical or mental abnormalities upon birth; if the pregnancy is caused by rape (presumed to constitute a grave injury to mental health). Unmarried women cannot cite pregnancy due to contraceptive failure currently. 

In a press release issued on January 29 this year, the Union Cabinet stated that the Bill also purposed expanding access “to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds”.

The 1971 Act was enacted with the aim to reduce maternal mortality due to unsafe abortions and as a population control measure. This is an exception to the criminalisation of abortion under sections 312-316 of the Indian Penal Code (IPC).

“A draft amendment Bill was proposed after wide stakeholder consultation in 2014. But it was never introduced in the Parliament,” reads a response in the  MTP (Amendment Bill), 2020, Frequently Asked Questions document prepared by the Jindal Global Law School. 


However, like the MTP Act, the Bill is also doctor-centric and not rights-based legislation for women, say experts.

As per the Bill, it requires one Registered Medical Practitioner (RMP) to approve abortions up to 20 weeks and two RMPs to approve abortions between 20-24 weeks. “India’s healthcare infrastructure is weak and many places have a shortage of RMPs (especially specialists such as gynaecologists, paediatricians and radiologists/ sonologists). The proposed amendment is, therefore, urban-centric and will disproportionately impact rural areas and marginalised groups,” the Jindal Global Law School report further reads.

The Bill proposes that beyond 24 weeks, a medical board must be set up to determine if any substantial foetal anomaly warrants termination of the pregnancy. Hence, the woman must depend on doctors to approve the termination of pregnancy, which again may be denied on ‘moral grounds’.

However, the Jindal Global Law School report says, “By allowing abortion even beyond 24 weeks if chances are there for a child to be born with disability, the Bill advances a eugenics rationale where only healthy people are considered desirable while those with disabilities are considered disposable. Also the medical boards, which have the authorisation to determine abortion after 20 weeks, are a form of third-party authorisation that violate women’s fundamental rights. Multiple examinations by doctors on the board violate the right to privacy. Requiring third-party approval before termination violates the rights to autonomy and bodily integrity. The Bill does not provide a time frame for the medical boards to decide on the abortion and the delay could lead to more complications."

The report suggests that unless critical gaps in the Bill are addressed, it will not improve access to safe abortion services. 

Advocate Anubha Rastogi , a lawyer based in Mumbai, tells TNM that the final decision on a pregnancy has to be made by the pregnant person and their service provider, and that the current law has too many obstacles. Anubha is also a Campaign Advisory Group member of the Pratigya Campaign for safe abortion and gender equality.  

“The decision to continue or terminate a pregnancy has to be between the pregnant person and her service provider. The law should only facilitate this right. Currently the law has created numerous barriers and is hence not serving its purpose. Whether the MTP should be done at an advanced stage of pregnancy or not,  depends on the health condition of the woman in concern and there can't be a general answer for that. Even the MTP Law in force and the IPC provisions permit termination at any stage for saving the life of the pregnant woman,” she says.

“Over the years a number of cases have gone to courts asking for permission for termination of pregnancy beyond 20 weeks and permission has been given even at 25-26 weeks based on medical advice and legal jurisprudence. Hence it’s safe to go for it, but the law sticks at 20 weeks and the amendment Bill also doesn’t expand it across the board,” Anubha adds.

 Dr Veena points out that doctors need to be clear about why the MTP Act exists and what their role should be.

“Many of the doctors believe that the Act is to protect them. But right to abortion should be highlighted as a choice to protect women’s rights, state level guidelines should be issued for this to do away with the confusions," she says.

Veena adds that access to abortion during the time of pandemic or similar situations is not made clear even in the Bill. “Even WHO has said that abortion is an essential service. Women who were in need of abortion were largely stuck during the lockdown,” she says.

IPC 312 not helping women

Section 312 of the Indian Penal Code(IPC) says that causing the miscarriage of a pregnant woman is an offence, unless it is done the save the life of the pregnant woman. Even when the pregnant woman causes her own miscarriage, she can be punished under this section.

The section states that whoever voluntarily causes a woman with child to miscarry shall, if not for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.

 “This section discourages many doctors from performing abortions, without the consent of husband,  fearing that they may be punished on complaint by the husband or any of the family members,” Sandhya says. 

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