What does Indian law say about abortion? In conversation with Anubha Rastogi

CREA, a feminist huma rights organisation organised a workshop on law and abortion on June 23 & 24, 2017 facilitated by lawyer Anubha Rastogi. Specialising in human rights law, Rastogi has extensive experience of working with women’s rights issues including illegal trafficking, abortion, sexual harassment,   among others. In conversation with Hidden Pockets, Rastogi spoke about right to our body as a fundamental right, laws around abortion, abortion as a right, among others.

Right to our body

How does the constitution define our right to our body?

The (Indian) constitution in the chapter on fundamental rights guarantees that each person has a right to life. Right to life has been interpreted to mean a lot of things including your personal liberty, your bodily integrity and your right to health. So that’s where the constitution actually brings in the fact that each person in this country has a right over his or her own body.

What are the rights that women enjoy with respect to their sexual and reproductive health?

If I look at laws, we have the Medical Termination of Pregnancy (MTP) Act from 1971 where the language is not in a rights based format but it has been providing access to women who want to terminate pregnancies and then there’s the Maternity Benefit Act which now has recently been amended to expand its own scope. Then there are legislations that have come in as a result of offences against women like the Domestic Violence Act, the Protection of Children from Sexual Offenses etc. But having said that, the Constitution treats each person as an equal and with that also provides the space for the state to make any special provisions for women and children and within that there are a lot of progressive policies and legislations which have been made for women.

Abortion as a right

How does the Medical Termination of Pregnancy (MTP) Act view getting an abortion? Does the act confer the right to abort on women?

The MTP Act is worded in a way in which the medical termination of pregnancy is based on medical opinion. So there is no on demand abortion in this country. And the MTP Act also lays down the conditions under which the pregnancy can be terminated. A registered medical practitioner can go ahead and terminate the pregnancy only based on medical opinion in the existence of any of these conditions. So in a sense even though since 1971 there is official legal access to termination of pregnancies, it’s not a right. It’s only one judgment of the Bombay High Court that has viewed the existing law from the lens of the woman and has termed it as a right. But the legislature is still not looking at it as a right.

What are the rights conferred by the Act on an unmarried women? is it illegal for an unmarried woman to get an abortion in India?

See the law is saying that where a woman is pregnant and it is an unwanted pregnancy and in the opinion of the doctor, the unwanted pregnancy will impact or have a grave injury on the woman’s physical body or her mental makeup then definitely the pregnancy can be terminated. Where the reason is contraception failure that is available only for married women. Where the pregnancy is as a result of rape and the woman is a major, there the woman can definitely seek termination of pregnancy and that can be provided to her irrespective of her marital status.

What are the amendments that have been proposed under the MTP act?

The amendments that have been proposed in the MTP Act are definitely to look at on demand abortion at least up to 12 weeks. There has been a proposal of increasing the 20-week limit to 24 weeks or 26 weeks. I think that stand keeps changing. One of the things that they are asking for is to increase the provider base because it’s with the appropriate training. So it’s not necessary that it’s only a MBBS doctor who can provide the MTP service. If legally, the law accepts it, with appropriate training even other service providers can provide this service safely. There has been a move to increase some other reasons for which an MTP can be provided. Those are some of the key amendments that are being sought.

Will abortion become a right if the on-demand abortion up to 12 weeks gets passed as an amendment?

Yes

Terms of the abortion as per MTP Act

What are the circumstances under which abortion can be done as you say under the MTP Act?

The MTP Act determines the length of the pregnancy as one of the factors. With respect to the length of the pregnancy (within which pregnancy can be terminated), the Act mentions 12 weeks and then there’s 20 weeks. If the pregnancy is as a result of sexual abuse or rape, she can get an abortion. It also allows for abortion where it’s a married woman and there is a contraception failure and therefore the pregnancy is unwanted. It also gives two instances as illustrations of what can be considered as a circumstance which will have a grave injury on the woman’s either physical condition or her mental setup. That is definitely one of the main reasons why many MTPs are done and can be done. The pregnancy may be terminated where there is any abnormality in the fetus, a history of disability in the family and a substantial risk that the fetus when comes to term and the child when born would suffer from some serious disability or would be handicapped, a term which the law uses. Apart from that it also provides for a registered medical practitioner to terminate a pregnancy at any point in time of the pregnancy irrespective of what the law otherwise says where it is to save the life of the woman.

Which is a place where someone can get an abortion? Is anything defined in the MTP act?

The MTP Act says that any government hospital is already a place that is approved where an MTP can be provided. For private setups, the MTP Act provides for a committee to be set up at every district level that will take applications and do an inspection of the place that has applied to become an MTP center. Once it’s approved, the committee will give them a certificate and will continue inspecting it and keep an eye ensuring that quality is maintained. So these are the two kinds of places where officially legally an MPT can be done.

PCPNDT Act and MTP Act: The conflict

What has been the effect of PCPNDT Act on MTP Act? Does PCPNDT make it illegal to get an abortion?

PCPNDT Act and the MTP Act, both acts have their scopes very clearly defined and they do not in any way merge or overlap with each other or hit each other. The PCPNDT Act only talks specifically about the regulation of clinics or technology that can provide sex determination (and selection) services. So the PCPNDT act makes it illegal for selecting the sex of the foetus and makes determining the sex and communicating the sex of the foetus an offense. And that’s where it stops. It does not say anything about what happens once a person knows the sex of the foetus. The offender under the PCPNDT Act in most cases is the expert, the radiologist or the technical expert who is able to understand and use the technology or misuse it. The MTP Act in its scope very clearly provides for situations when a pregnancy can be terminated and that’s all it says. If a woman is falling within any of those categories and on medical opinion, a registered medical practitioner is terminating the pregnancy there is no offense that has occurred under the MTP Act or under the PCPNDT Act at least by the provider who has provided the service. There may be an offence committed by someone under the PCPNDT Act. The person may have communicated the sex of the foetus but nothing else in this whole chain of events. The scope of the PCPNDT and the MTP Act has actually affected women in accessing MTP services in a large way. From what I hear, many doctors are now afraid or are reluctant to provide MTP services because of which there is a possibility of some kind of restriction or inspection that they will have to face.

How has the sex ratio in India been affected by the PCPNDT and MTP Act considering that a certain association is constantly made in this conversation with respect to these Acts?

The gap between the number of girls born per 1000 male children born was increasing. Because of the declining child sex ratio, it was understood that this is happening simply because there is gender based sex selection that is taking place.

This gave the PCPNDT Act lot more teeth. When the Act was amended in 2003, several new technological developments were brought into the fold of the law. But very clearly the PCPNDT talked about the fact that the offense is the determination of the sex of the foetus and its communication. Without that information even if a woman or a family is seeking a MTP, it doesn’t really make a difference. The problem has been that the focus has completely moved from the service provider or the expert to the woman, her pregnancy and what is she doing with the pregnancy while that, in the domain of law is not really an offense. What has now happened is that states are being asked to provide child sex ratio numbers on a monthly basis. Districts have been asked to provide these on a monthly basis. I’m not a statistician so I’m not very clear but I’m told that it takes about at least 3-4 years to determine child sex ratio or sex ratio of the adult population. It’s obvious that those numbers are not accurate where we are asking districts to provide these numbers on a monthly basis. But those numbers are being quoted and this is having its impact on access to MTP centers and people are refusing to provide MTPs as a service. Obviously, then it has its impact. There is a lot of push to implement the PCPNDT Act in different ways because of these numbers.

What was the PIL related abortion that you had worked on, in the state of Chattisgarh? 

This was a writ petition filed as a Public Interest Litigation before the Bilaspur High Court in the state of Chhattisgarh. Before filing the petition, there were a lot of Right to Information applications that I had filed to know whether the District Level Committees have been actually set up in every district in the state of Chhattisgarh and what is the number, how many times in the past year did they meet, how many centres and how many applications have they decided upon. In Chhattisgarh, out of the almost 27 districts, some of them did not respond (to the RTI request) and 10 of them responded back saying that they had never set up a District Level Committee.

National Alliance for Maternal Health and Human Rights became the petitioners. They also have members from the state of Chhattisgarh. This petition was basically filed to ask for district level committees to be set up and to also ask for government hospitals to ensure that MTP services are provided and that they are as per law. We used the RTI data, the data that was available in the public domain about the condition of access to Medical Termination of Pregnancy services in Chhattisgarh and with individual stories of other woman and some clinics in Chhattisgarh (to file the PIL).

The case was decided in January 2017. When the petition was filed in 2014, I think there were only 30 registered centers that were available and at the end of the petition, there were 150 centers that were available.

Data that the state gave showed that they had actually done a fabulous job. Even though this was on paper, we still wanted an opportunity to be able to counter what the state is saying on paper but we were unfortunately not given that opportunity. But even then an increase from 30 to 150 is quite high even if it is only above 50 percent accurate. That is still some access that has been created because of this petition. It also enumerated the number of professionals who have been trained under the MTP Act to be able to provide MTP services. That had also drastically increased. We had also asked for other things in the petition where we said that not only should a government hospital or a private clinic be prepared to provide for MTP but it should also be prepared to deal with any eventuality. There should be access to blood banks, clean water, electricity etc. but all of those things were not really dealt with by the court and the matter was disposed off.