Abortion in India

History

Before 1971 (Indian Penal Code, 1860)

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860 Except in cases where abortion was carried out to save the life of the woman, it was a punishable offense. The Code criminalized both women and providers, with whoever voluntarily caused a woman with child to miscarry facing three years in prison and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine.

Shah Committee and the Medical Termination of Pregnancy Act, 1971

The Shah Committee was appointed by the Government of India in 1964. The Committee carried out a comprehensive review of the socio-cultural, legal and medical aspects of abortion. The Committee in 1966 recommended legalizing abortion in its report to prevent wastage of women's health and lives on both compassionate and medical grounds. According to the report, in a population of 500 million, the number of abortions per year will be 6.5 million–2.6 million natural and 3.9 million induced.

The Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework for abortion in India. Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below:

• When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health;
• When there is substantial risk that the child would be dead, or if born, would be seriously handicapped due to physical or mental abnormalities;
• When pregnancy is caused due to rape (anguish caused by such pregnancy presumed to constitute grave injury to the mental health of the rape survivor);
• When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute grave injury to mental health of the woman).

MTP Act, Amendments, 2002

The Medical Termination of Pregnancy (MTP) Act 1971, was amended in 2002 to facilitate better implementation and increase access for women especially in the private health sector.

1. The amendments to the MTP Act in 2002 decentralized the process of approval of a private place to offer abortion services to the district level. The District level committee is empowered to approve a private place to offer MTP services in order to increase the number of providers offering CAC services in the legal ambit.
2. The word 'lunatic' was substituted with the words "mentally ill person". This change in language was instituted to lay emphasis that "mentally ill person" means a person who is in need for treatment by reason of any mental disorder other than intellectual disability.
3. For ensuring compliance and safety of women, stricter penalties were introduced for MTPs being conducted in unapproved sites or by untrained medical providers by the Act. 1971

MTP Rules, 2003

The MTP Rules facilitate better implementation and increase access for women especially in the private health sector.

• Composition and tenure of District Level Committee: The MTP rules 2003, define composition of the committee stating that one member of the committee should be a gynecologist / surgeon/ anesthetist and other members should be from the local medical profession, non-government organizations, and Panchayati Raj Institution of the district and one member of the committee should be a woman.
• Approved place for providing medical termination of pregnancies: The MTP Rules 2003, provide specific guidelines pertaining to equipment, facilities, drugs, and referral linkages to higher facilities required by an approved place for providing quality CAC and post abortion services.
• Inspection of private place: The MTP Rules 2003 state that an approved can be inspected by the Chief Medical Officer (CMO), as often as may be necessary with a view to verify whether termination of pregnancies are being done therein under safe and hygienic conditions.
• Cancellation or suspension of a certificate of approval for a private place: As per the MTP Rules 2003, if the CMO of the District is satisfied that the facilities specified in rule 5 are not being properly maintained therein and the termination of pregnancy at such place cannot be made under safe and hygienic conditions, she/he shall make a report of the fact to the Committee giving the detail of the deficiency or defects found at the place. The committee may, if satisfied, can suspend or, cancel the approval of the place provided that the committee gives the owner of the place a chance of representation before the certificate issued under rule 5 is cancelled.

MTP Amendment Act, 2021

On 29 January 2020, Government of India first introduced the MTP Amendment Bill 2020, which was passed in Lok Sabha on 17 March 2020. A year later, the Bill was placed in Rajya Sabha and was passed on 16 March 2021 as the MTP Amendment Act 2021. The Amendments are as below:

• Married clause dropped - The MTP Act earlier permitted termination of the pregnancy by only a married woman in the case of failure of contraceptive method or device. With the amendment, unmarried women can now seek safe abortion services on grounds of contraceptive failure.
• Increase in gestation limit - Under the MTP Act 1971, the time limit for terminating pregnancy was up to 12 weeks on the advice of one doctor and up to 20 weeks on the advice of two doctors. Moreover, post 20 weeks terminating pregnancy was not permitted. However, now all women can terminate pregnancy up to 20 weeks on the advice of one doctor and special categories of women (survivors of sexual abuse, minors, victims of rape, incest, disabled women) can seek termination up to 24 weeks. Moreover, women/couples can seek termination of pregnancy, anytime during the gestation period for foetal anomalies, as diagnosed by the Medical Boards.
• Medical Boards - The amendments mandate constitution of Medical Boards in all the states and union territories for diagnosing substantial fetal anomalies. The Board will decide if a pregnancy may be terminated after 24 weeks and each board will have a gynecologist, radiologist/sonologist, pediatrician and other members notified by the government.
• Confidentiality - A registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated to a person authorized by law. Violation is punishable with imprisonment up to a year, a fine, or both.

Statistics

There is significant variance in the estimates for the number of abortions reported and the total number of estimated abortions taking place in India. According to HMIS reports, the total number of spontaneous/induced abortions that took place in India in 2016–17 was 970,436, in 2015–16 was 901,781, in 2014–15 was 901,839, and in 2013–14 was 790,587. It is reported that ten women die every day in India due to unsafe abortions.

Abortion incidence in India

The Guttmacher Institute, New York, International Institute for Population Sciences (IIPS), Mumbai and Population Council, New Delhi conducted the first study in India to estimate the incidence of abortion. The results from this study were published in Lancet Global Health journal in December 2017 in the form of a paper titled "The incidence of abortion and unintended pregnancy in India, 2015". This study estimates that 15.6 million abortions took place in India in 2015. 3.4 million (22%) of these took place in health facilities, 11.5 million (73%) were done through medical methods outside facilities, and 5% are expected to have been done through other methods. The study further found the abortion rate at 47 abortions per 1000 women aged 15–49 years.

Prior to this study, the last available estimate for incidence of abortion at 6.4 million abortions per year in India was from the 'Abortion Assessment Project — India'. It was a study of 380 abortion facilities (of which 285 were private) carried out across six states. The study found that "on average there were four formal abortion facilities (medically qualified though not necessarily certified to carry out abortions) per 100,000 population in India and an average of 1.2 providers per facility". Out of the total formal abortion providers, 55% were gynecologists and 64% of the facilities had at least one female provider. The study further found that only 31% of the reasons for seeking abortion by women were within grounds permitted under the MTP Act, the other reasons being unwanted pregnancy, economic reasons and unwanted sex of the foetus.

Profile of women seeking abortion

A client profile study focusing on the socio-economic profiles of women seeking abortion services, and costs of receiving abortion services at public health facilities in Madhya Pradesh, India, revealed that "57% of women of who received abortions at public health facilities were poor, followed by 21% moderate and 22% rich. More poor women sought care at primary health level facilities (58%) than secondary level facilities, and among women presenting for post-abortion complications (67%) than induced abortion." Further, the study found that women admitted to spending no money to access abortion services as they are free at public facilities. Poor women, it was reported, "spend INR 64 (USD 1) while visiting primary level facilities and INR 256 (USD 4) while visiting urban hospitals, primarily for transportation and food". The study concluded that the "improved availability of safe abortion services at the primary level in Madhya Pradesh has helped meeting the need of safe abortion services among poor, which eventually will help reducing the maternal mortality and morbidity due to unsafe abortion".

Methods of abortion

Manual vacuum aspiration

Manual vacuum aspiration (MVA) is a "safe and effective method of abortion that involves evacuation of the uterine contents by the use of a hand-held plastic aspirator", which is "associated with less blood loss, shorter hospital stays and a reduced need for anesthetic drugs". This method of abortion is recommended by the WHO for early termination of pregnancy.

Electric vacuum aspiration

Electric vacuum aspiration (EVA) is similar to the MVA insofar as it involves a suction method, but the former uses an electric pump to create suction, instead of the hand-operated pump in MVA.

Medical abortion

Medical abortion is the termination of pregnancy by drugs. It is a "non-invasive method of ending an unwanted pregnancy that women can use in a range of settings, and often in their own homes". The two drugs approved for use in India are mifepristone and misoprostol.

• Mifepristone (RU 486): Progesterone is a hormone required for the growth of the foetus. This drug has anti-progesterone action so it stops the growth of the fetus. The process of medical abortion is started with this drug.
• Misoprostol: This drug is used to induce softening of the cervix so that it is dilated easily. It also produces uterine contractions. Due to cervical softening and contraction of the uterine muscles, it helps to expel the contents from the uterus.

In India, use of these drugs (mifepristone and misoprostol) for termination of pregnancy is approved up to nine weeks. This method can increase access to safe abortion services for women since it allows providers to offer CAC services where MVA or other abortion methods are not feasible.

Dilation and curettage

The only abortion technique available when abortion was decriminalized in India in 1971 was the dilation and curettage (D&C) method. This dated method is an invasive medical procedure which requires "the use of anesthesia for removing products of conception using a metal curette", often running the risk of hemorrhage or uterine infections. WHO and FIGO issued a joint recommendation which stated that properly equipped hospitals should abandon curettage and adopt manual/electric aspiration methods.

Miscarriage leave

India was the first country to legalize miscarriage leave.

The Maternity Benefit Act 1961 states that in case of miscarriage, a woman will be entitled to paid leave for six weeks immediately following the day of her miscarriage. Women are required to submit proof for miscarriage and willful termination of pregnancy (abortion) is excluded.

Additionally, women with illness arising out of miscarriage shall, on production are also entitled to paid leave of up to one month on submission of relevant medical proofs.

Reasons for unsafe abortions

Almost 56% of abortions in India are under the category of unsafe. Unsafe abortions is a common recourse for most women in the country, including in the rural pockets, due to various social, economic and logistical barriers. Stigma is another dimension that prevents women from seeking abortions from approved facilities.

Despite India's extensive efforts to improve maternal and reproductive health, wide geographical disparities exist between its urban and rural population. Interventions at various socio-ecologic and cultural levels, along with improved health literacy, access to improved health care and sanitation need attention when formulating and implementing policies and programs for equitable progress towards improved maternal and reproductive health.

Unsafe abortion, the third leading cause of maternal deaths in the country, contributes eight per cent of all such deaths annually with 13 women dying each day. Several factors contribute to women opting for abortion outside the accredited abortion centers including:

• Woman denied services as she is unable fulfil the requirement as per the MTP act, thus resorting to unsafe means
• Shortage of providers/absence of competent health professionals and poor perceived quality of care in government facilities in rural areas, is another major reason, as many rural and poor areas lack registered medical providers, supplies and infrastructure
• High abortion cost at hospitals in the cities. Private sector charges are huge and unaffordable for the poor
• Reluctance to obtain services from known neighborhood clinics due to lack of confidentiality
• Lack of awareness about the need to seek abortion early in pregnancy
• Providers denying services because of biases or misinformation around how laws governing sex selection, child sexual abuse and abortion intersect

Safe abortion and POCSO Act

The Protection of Children from Sexual Offences (POCSO) Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.

Although the Act safeguards the life and rights of children, it fails to differentiate between 'consensual sex' and offence and also does not address the grey area of 'early marriage'. Any sexual activity with persons below the set age i.e. 18 years is deemed as statutory rape. As the act fails to differentiate between offense and consent, it poses a huge barrier to access to sexual and reproductive health services for adolescents.

Moreover, the Act has the requirement of mandatory reporting and failing to do so can lead to penalty with imprisonment or a fine. This requirement impacts adolescents' sexual and reproductive health (SRH), as it results in denial of variety of SRH services such as contraception, medical help for sexually transmitted infections, etc. Health professionals are playing safe not to get entangled in legal proceedings thereby impacting SRH services.

The mandatory reporting also hinders access to safe abortion services for adolescents. The conflation between POCSO and MTP Acts result in denial of services for consensual as well as sexual assault of minors. Earlier the MTP Act required the consent of a guardian for a minor and that still remains, but due to POCSO Act, the mandatory reporting complicates the issue, and providers are wary of delivering safe abortion services to minors, even in case of assault, ensuing many to seek unsafe abortions to avoid legal hassles; and to further complicate parents exploiting this to harass children or their partners with imprisonment of 7 to 10 years.

September 2022 Supreme Court ruling

A three-judge bench of Supreme Court of India in Civil Appeal No. 5802 of 2022 made some findings on 29 September 2022. The judgement adds emphasis on women's right to bodily autonomy, sexual and reproductive choices, extended equal benefit of law to unmarried women and reduced number of hurdles like third party consent for adult women.

The judgement defined "woman" as all persons who require access to safe abortion, along with cisgender women, thus including trans people and other gender-diverse persons.

The Court noted that medical practitioners commonly insist that abortion-seekers comply with extra-legal conditions, such as obtaining the consent of the abortion seeker's family, producing documentary proof, or judicial authorisation, and that, if such conditions are not met, they frequently deny the abortion service. It found this practice "lamentable". The Court remarked that medical practitioners should refrain from imposing such requirements and that only the woman's consent was material, unless she was a minor or mentally ill. It also stated that "every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party" and that a woman is the ultimate decision-maker on the question of whether she wants to undergo an abortion."

On the topic of the difference between the gestation period considered legal for married and unmarried women -- 24 weeks for the former and 20 weeks for the latter -- the Court ruled that the distinction was discriminatory, artificial, unsustainable and in violation of Article 14 of the Constitution of India, and that "all women are entitled to the benefit of safe and legal abortion."

On the subject of pregnancies resulting from marital rape, the Court ruled that women can seek an abortion within the gestational period of 20 to 24 weeks under the ambit of "survivors of sexual assault or rape".