Abortion laws rely essentially on deciding when life begins and societies will always debate this. At what point does the foetus’ life become worthy of protection?
An important piece of legislation speaking to India about half of India has gone largely unapplauded. In late January 2020, the Union Cabinet amended the 1971 Medical Termination of Pregnancy (MTP) Act allowing women to seek abortions as part of reproductive rights and gender justice. The amendment also places India in the top league of countries serving women who wish to make individual choices from their perspectives and predicaments.
The amendment has raised the upper limit of MTP from 20 to 24 weeks for women including rape survivors, victims of incest, differently abled women and minors. Failure of contraception is also acknowledged and MTP is now available to “any woman or her partner” replacing the old provision for “only married woman or her husband.” The new law is forward looking, empathetic and looks at a very sensitive issue with a human face.
“India will now stand amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds. It is a milestone which will further empower women, especially those who are vulnerable and victims of rape,” Union Cabinet Minister for Textiles and Women and Child Development Smriti Irani wrote in her blog.
India’s move comes at a time when the landmark Roe v. Wade in the Supreme Court of the United States (US) is under scrutiny. That 1973 judgment protects a pregnant woman’s liberty to decide whether or not to have an abortion without needless government restrictions. A historic piece of legislation, it served as a beacon of hope for women around the world. Roe v. Wade is now shaking at its roots as a conservative US Supreme Court wants doctors performing abortions to get admitting privileges from a nearby hospital.
American women rightfully worry that the government could ring fence their options. A decision is not expected until later this year and stakes are high. The European Court of Human Rights has never spoken out on the question of abortion and whether or not it should be legalised. In fact, Ireland, a member of the European Council, legalised abortion only in 2018.
The Indian amendment says there is no limit for gestational age in case of fetal abnormalities. This addresses maternal mortality and morbidity arising from unsafe abortions. Women will also be spared the stress and agony of seeking permissions from courts as time runs out on them. The amendment clarifies the role of practitioners who hesitate to intervene in cases of rape and incest survivors.
Critics say amendment does not go far enough. Their principle concern is absence of scale in the provider base. The amendment is suitably large allowing for the inclusion of changes as the dialogue frames its parameters. Framing is key in public health. Frames decide what is at stake, who is responsible and where solutions can come from. Gender justice, reproductive health, maternal health and a woman’s right to her body are issues that need special attention because what is at stake is not just the welfare of women but also that of entire societies.
Public health ground realities in India differ vastly from state to state. What is normal in Kerala (response to Nipah) and Coronavirus cannot be said for most Indian states where data is patchy. The first large scale study on abortions and unintended pregnancies conducted by The Lancet in 2017 said one in three of the 48.1 million pregnancies in India end in an abortion with 15.6 million taking place in 2015.
What can be counted can be addressed, say public health experts. Abortion laws rarely address investments and resources because data gathering is not standardised. Most Indian women (and men) go to government hospitals or health care centres for family planning advice including MTP. Since health is a state subject, the enabling aspects of the amendment, especially data gathering, between New Delhi and the states cannot be underestimated.
Abortion laws rely essentially on deciding when life begins and societies will always debate this. At what point does the foetus’ life become worthy of protection? After how many months is it justified to restrict a woman’s right to MTP? There is no one answer and proponents of anti-abortion laws, who believe that life starts at fertilisation, have just strong an argument as people who believe it does not.
That is why we need laws. They do not always reflect values of a society but in the presence of uncertainty, laws have to provide a frame within which people can navigate knowing with certainty what is legal and what is not. This makes the point that the limit can be seen as arbitrary but it is necessary. This is not a reflection of what is right and what is wrong. In the case of abortion, legislators have decided on a certain time frame. For some countries it is 12 weeks, for other like India, it is now 24 weeks.
Millions of women around the world rely on a range of solutions to abortions, ranging from expensive private clinics to quacks. Unwritten and unsaid prejudices follow them from menstruation through pregnancies to menopause, in most cases without any legal or family support. The amendment has ended one set of uncertainties. A roll back is not possible and that is a major step for women.
How does the world compare with India? It depends on what is being compared. While law are not in competition between countries, they are indicators of where rights, especially women’s rights stand. Currently, 26 countries in the world do not permit abortions and 39 allow it only when the mother’s life is at risk.
Roe v. Wade is almost synonymous with the US and abortion laws. According to it medical judgement may be exercised in the light of all factors, physical, emotional, psychological and familial, allowing the attending physician the room he needs for making the best medical judgement.
Gestational limits vary between eight to twelve weeks. Twenty two states have banned the use of procedure anywhere between 13 and 25 weeks. Some states like Alabama do not allow termination throughout the pregnancy period.
Many states restrict access through means ranging from regulations targeting abortion providers and mandatory delays. Some states are passing increasingly restrictive bans, including pre-viability bans, which are the subject of ongoing litigation. Many are in court. If Roe v. Wade is weakened, abortion rights would be protected in less than half of the US states and none of the US territories.
In 2019, nine states passed bans on abortion at various points in pregnancy including Arkansas, Georgia, Louisiana, Kentucky, Mississippi, Missouri, Ohio, Utah, and Alabama (which passed a total abortion ban). None of these laws are in effect, and the Center for Reproductive Rights and its partners are fighting to keep it that way.
Medical termination of pregnancy is available on request. The gestational limit is 14 weeks, calculated from the first day of the last menstrual period.
Legal abortions are permitted in case of rape and if there is no other way to save the life of pregnant women. Women and girls who terminate pregnancies under any other circumstances face up to three years in prison. Media reports say more than 300 abortion-related cases against women were registered by the courts in 2017, many of them reported by health professionals from whom women were seeking MTPs outside the system.
The gestational limit is 12 weeks from conception or 14 weeks from first day of the last menstrual period, and MTP is available on request. During this period the intervention can be performed any time if two physicians, members of a multidisciplinary team, certify, that continuance of the pregnancy seriously endangers the health of the woman or there exists a strong probability that the unborn child is suffering from a disorder of particular seriousness recognised as incurable at the moment of diagnosis. (See more)
Abortion is permitted on request and gestational limits vary depending on strict regulatory mechanisms.
Abortion is legally permitted to save a woman’s life. Punishment for causing a miscarriage is a fine that could include up to three years imprisonment. Despite these laws the number of abortions in the island nation remain high with the Ministry of Health reporting in 2016 that 658 abortions per day. In Sri Lanka, 12.5% of all maternal deaths are due to illegal abortions, making it the third most common cause of maternal mortality.
The rate of safe abortions dropped between 1995 and 2003 from 20 to 15 per 1,000 women aged 15 – 44, while the unsafe abortion rate declined hardly at all — from 15 to 14 per 1,000. The overall abortion rate declined from 35 to 29 per 1,000.
Public health is not a running race. It is an integral part of a country’s developmental path with several moving parts. The amendment sets women’s health in India in the trajectory it merits.
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Chitra Subramaniam is a media person and entrepreneur.Read More +