In the 50 years of its existence, India’s Medical Termination of Pregnancy (MTP) Act has been amended only twice; once in 2002 and now recently in 2021. In the meantime there has been remarkable progress in medical technology – in the availability of safe and simple technologies for abortion like manual vacuum aspiration and medical drugs, and diagnostics that help identify severe fetal anomalies closer to and after 20 weeks gestation.
Apart from advances in medical technology, understanding and appreciation of the need for women to have complete control over their bodies has increased, as evidenced by several progressive court judgements in India, such as those in the Puttaswamy Judgment of the Supreme Court, Anil Kumar Malhotra v Ajay Pasricha, Suchita Srivastava v Chandigarh Admin, and international conventions and international platforms like Convention on Elimination of All forms of Discrimination against Women, and the International Conference on Population and Development.
There were great expectations that the amendments to the MTP Act would truly make it contemporary and progressive, establishing India’s leadership in setting the global agenda on a sensitive subject.
While what has been amended is a step ahead from the 1971 Act, it still is a far cry from being truly inclusive. The larger issues of access to safe abortion care and women’s rights remain largely untouched.
The true measure of success of the amendments is implementation, and how it is able to bridge access gaps. Merely legalizing abortion does not guarantee accessibility or necessarily translate into access. A lot of work remains to be done in terms of access, putting in place a rights-based approach, telemedicine, and task sharing.
Studies on the role of the judiciary in access to safe abortion done by Pratigya, a network of individuals and organizations working toward enhancing women’s access to safe abortion care in India, point to the failure of the legal system to address what is a matter of human rights. In this regard, we find it imperative to address the judiciary’s responsibility in furthering the access to safe abortion.
The analysis of 194 writ petitions heard by the Supreme Court and the High Courts between June 2016 and April 2019, filed by women seeking to have their pregnancy medically terminated, identified several systemic issues leading to unpredictable, varied, and inconsistent outcomes.
The length of the gestation period and the opinion of the medical boards were common themes in cases of rejection. Neither factor considers the petitioner’s medical report or the impact on the woman beyond the subjective interpretation of the Act.
Similarly, the reports on availability of medical abortion drugs done by Pratigya Campaign in the past shows that unavailability of medical abortion pills legally in the market is doing much disservice to pregnant women. Sadly, overregulation led by a misplaced understanding that reducing access to abortion pills will help arrest the declining child sex ratio contributes massively to access barriers.
Medical abortion drugs are indicated for use up to nine weeks gestation. Sex determination, using the most common and affordable diagnostic tool, ultrasonography, is not possible during this period. Ultrasound can determine the sex of the fetus only at 13-14 weeks (early second trimester). An overwhelming majority of abortions in India, estimated upwards of 85 percent, occur in the first trimester.
Women’s right and access to abortion, which the MTP Act enables, have somehow become entangled in the fight against gender-biased sex selection. As a result, chemists claim they face additional scrutiny if they stock medical abortion drugs. They are informally told not to sell such pills, to keep copies of prescriptions and in some cases, keep track of the identity of the purchaser – a clear violation of the MTP Act, which assures women confidentiality.
The reports show that medical abortion drugs are overregulated compared to all Schedule-H drugs (a class of prescription drugs in India), and much has to do with the misconceptions over gender-biased sex-selection. There is an urgent need to clear the prevailing misunderstanding among drug regulators and health officials about medical abortion drugs and sex selection, so that abortion pills are treated just like any other Schedule-H drug and are not singled out for additional scrutiny.
Meanwhile, the past year-and-a-half has been nothing short of a hellish experience for abortion seekers in the country. With facilities becoming dedicated COVID-19 facilities, abortion services not being provided, and medical abortion drugs unavailable, the situation for an abortion seeker has been a nightmare.
Though abortion is notified as an “essential service,” the gap between providers and abortion seekers is much wider now than ever before. Pratigya has attempted to bridge the gap by populating a database of approved MTP providers so that pregnant persons can connect to a verified provider. Since its inception in late 2020, the database has been accessed by over 2,000 people and most have been flooding queries about where to consult and whom to consult.
There is an urgent need to look into the Rules and Regulations of the MTP Amendment Act from a fresh perspective and ensure that the opportunity is not missed this time around to expand the service provider base and address access gaps.