Gender Fact: A thorough look at India’s abortion law and impact on unwanted pregnancies

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Trigger Warning. Imagine you are an 11-year-old girl. Brimming with life. Your periods have started a while back. And you are, just, getting used to the idea. Your uncle rapes you, repeatedly. Your nascent periods stop. You don’t know what is happening. Confused, you speak to your mother about it. After she’s done crying, your mother takes you to a doctor, who confirms her suspicions, you are pregnant. You don’t even know the meaning of the word, or what is happening to you. When it’s your age to play with dolls, you are going to birth a living one. Your mother says you need an abortion but the doctor refuses, saying it is against the law, as you are over 20 weeks. She tells the doctor it was detected late. He refuses. You get bigger, more than your-not-yet-ripe body can handle. And, you still don’t know, exactly, what is happening. Your mother cries often. The water starts to flow between your legs. And the pain is excruciating. Your body, too small, to experience what it’s undergoing. You scream and shout, gasping for every tortured breath. You begin to bleed profusely. The same doctor is on-call; he tries to deliver the baby. Normal delivery is out of choice. He is too late. You bleed to death. You never get to see your baby. You never get to kiss her goodbye.

Sounds farfetched, right? It is a true life incident in India, where a minor girl died after giving birth to her child, she was refused an abortion.

What fault of yours was it that he raped you?

What fault of yours was it that you got pregnant?

What fault of yours was it you were denied an abortion?

What fault of yours was it that you died?

What fault of yours was that you never got to see your baby?

What fault of yours was to bid adieu to a life you just began?

The fault lies, partially, with the archaic laws, we follow. India, till very recently (Jan 2020), followed a fifty-year-old law, that determined the cut-off gestation period, of 20 weeks for an abortion, notwithstanding the medical advancements in the field. No consideration was shown for minor girls, who were raped, and had no concept of pregnancy, and in most cases weren’t even aware, they had conceived. The law stated that after 20 weeks, abortions wouldn’t be possible, in the rarest of rare case, the foetus’ existence was a danger to the mother’s life. It’s only in Jan 2020, it was announced that abortion can happen upto 24 week in some cases. The lack of legitimate medical avenues, if the gestation limit is over 20 weeks or lack of awareness about the procedures, especially in rural areas, led women to illegal abortion centres. We examine some of the factors that influence their ill-fated decisions to visit these centres.

All doctors, by law, are expected to report minor rape or assault cases to the police.  With the Indian judicial process, a never-ending nightmare, no doctor wants to get involved in the associated red tape. This tendency to avoid legal proceedings, results in doctors refusing to proceed with the abortion, despite the minor girl’s parent signing the document that authorise them to do so. Also, as per the POCSO Act, doctors to avoid their own persecution, instruct the patients to furnish legal affidavits, among others, before they admit them for the procedure. Patients, who may be involved in criminal cases, are generally reluctant to go via the legal route, and thereby by-pass this option. Certain doctors also use the excuse of the Preconception and Prenatal Diagnostic Technique Act, that prevents revealing the gender of the foetus, but doesn’t prohibit abortion, per se.

Women in rural areas in India tend to have more trouble in getting abortions than their urban counterparts. Abortions can only be performed by registered gynaecologist and obstetricians, who have one-year work experience under their belt or have assisted in at least 25 abortions, as per a 2003 health ministry guideline.  There is a serious dearth of gynaecologists / obstetricians in the rural medical sector. A 2019-20 report on the National Health Mission, by the Accountability Initiative, states there is a 75% shortage of trained medical practitioners in the villages. There have been talks to permit trained Ayurveda, Yunani, Naturopathy, Siddha and Homeopathy doctors to permit the procedure, as long as it is being carried out within the sub-district radius, as in case of an emergency they can reach the district hospital, faster. These recommendations are still under discussion.

Delays in the decision of court rulings negatively impact termination of pregnancies. Women, at times, file writ petitions when they have been denied abortions, especially in sexual assault cases. Certain minor mothers are forced to proceed with the pregnancy, as the delay in the court rulings, meant the earlier 20-weeks limit was exhausted. The court does take under consideration the woman’s physical health, but doesn’t give credence to the socio-economic implication of the pregnancy – including the survivors of rape. The courts, on an average, don’t consider the harm a full-term pregnancy can do to a young minor girl’s body. Certain medical complications arising from a minor pregnancy can even lead to death – either of the baby or its mother. As per a February 2018 WHO report , childbirth related cases are the leading cause of death in the 15-19 age group of pregnant girls, globally speaking.  Since the body of a minor girl is still under-developed, in majority of the cases, a normal delivery is out of question. Indian courts don’t consider the long-lasting effects on the mental health of rape and unwanted pregnancies on the psyche of the young girls, while passing out their rulings.

Social Behaviour and Society

Social judgment is also a factor that plays in the minds of the young mothers-to-be. When a woman seeks abortion, the societal pressures project the case as a woman vs foetus, rather than considering it as a medical case, that it is. There are often insinuations, or open verbal attacks on the woman, maligning her character. There is also the issue of viability, that determines the rights of a foetus. Viability of a foetus determines the stage at which a foetus can survive independently – outside its mother’s womb, generally it’s 28 weeks. Most countries have laws that at this stage, or earlier, the foetus has rights, like humans do. And its right to survive is equal, if not higher than the woman’s right, to abort. Only, if the foetus’ existence is dangerous to its mother, abortion can be considered.

Shady Abortion Clinics

With all the options, they are aware of, exhausted, these weary mothers-to-be and their families have no other choice but to knock on the doors of the shady abortion clinics. The procedure carried out in these clinics are performed by, in most cases, by midwives or untrained doctors, and they end up causing more trauma to the patient. These unsafe `abortions severely affect future fertility chances, may cause internal injuries, or in some cases, even death. Some of the patients below the poverty line can’t afford the illegal clinics’ costs, resort to unconventional options like inserting sticks inside the girl, herbal concoctions or even abdominal massages. Rarely, do they have the desired results.

With many activists arguing for changes in the archaic laws, Indian government has taken cognisance of it. In late January 2020, the Union Cabinet brought amendments to the 1971 Medical Termination of Pregnancy Act (MTPA), indicating abortions are within the reproduction rights and gender justice for women.  The gestational termination limit was increased from 20 to 24 weeks. This change covers rape and incest survivors, differently-abled women, and minors. Another milestone change in the act is, it now permits women, married or unmarried, an abortion. It is a major step forward from allowing ‘only married woman and her husband’ an abortion, earlier. There are now no gestational limitations w.r.t. abortions, in case of foetal abnormalities. These new progressive, sensitive and empathetic amendments, place India in the top leagues of countries, that hand women the rights to their body, depending upon their position and situation. It is a right step forward in empowering woman, and giving back to them, their long-denied rights. This landmark decision is especially relevant, in face of the United States of America’s case of Roe vs. Wade in the US Supreme Court. The 1973 verdict protects the rights of a women to make decisions regarding their body, without the government interference. This is being watched avidly by women all over the world, where a conservative US Supreme Court will decide if women can take decisions with respect to their own bodies. It is a sad reality that women citizens of the first world countries also struggle in getting in getting basic human rights allotted to them. We will have to wait and watch to see how the situation proceeds.

Some critics have voiced their concerns about the reach of these amendments. They opine that the changes have not been framed adequately as gender justice, reproductions rights, women’s mental and physical health and her right to her own body need much more detailed attention as these alterations will play a role in shaping the whole society. But, they all agree, India is definitely striding towards, at least on paper, to give women a control over their bodies, something that is still a dream for their counterparts in other countries.  Women empowerment, for now, seems to be in safe hands.