Policy and practice
ABORTION law in India, governed by the Indian Penal Code, 1862 and the Code of Criminal Procedure, 1898 till 1971, traces its origins to 19th century British law wherein abortion was a crime punishable for both the mother and the abortionist, except when it was induced to save the life of the woman. The 1960s and ’70s saw the liberalization of abortion laws across Europe and the Americas which extended to many other parts of the world through the 1980s (Berer 2000, Rahman 1998). The Shantilal Shah Committee, based on a comprehensive review of abortion from various socio-cultural, legal and medical aspects, recommended legalizing abortion to prevent maternal morbidity and mortality on compassionate and medical grounds.
Though some states looked upon the proposed legislation as a potential strategy for population control (Phadke 1998), the Shah Committee specifically denies legalization of abortion for the purpose of population control. On the contrary, it stresses that to legalize abortion for demographic goals may be counter-productive to the constructive and positive practice of family planning through contraception (GOI 1966).
The term ‘Medical Termination of Pregnancy’ (MTP) was used to reduce opposition from religious and social groups averse to the liberalization of abortion. The MTP Act enacted by Parliament in 1971 in 22 states and nine Union Territories (subsequently amended in 2002) seeks to liberalize abortion in India. The act was enforced in the states of Jammu and Kashmir, Mizoram, and Sikkim only in 1980 while the Union Territory of Lakshwadeep still has restrictive abortion laws.
The annual estimates of abortion vary from 3.9 to 6 million, with some projections claiming upwards of 12 million. Even a conservative 3.9 million annual abortions resulted in about 70 million abortions in the initial 18 years since 1971 compared to official reported figures of 6.3 million abortions (GOI 1990) – a gross underestimate – suggesting that a majority of abortions are either not reported or take place illegally. The abortion ratio (number of induced abortions per 100 pregnancies or per 100 live births) has varied from 1.3 in large scale national surveys (IIPS 1995, ICMR 1989, IIPS 2000), to 2.1 based on government statistical sources (Chhabra 1996, GOI 1996, Henshaw 1999), to about 9 to 14 in micro-studies (Nair 1985, Kumar 1995, Ganatra 2000, Ganatra 2000a), to about 18 to 20 based on projections (Chhabra 1994, Singh 1996).
Data on abortions occurring outside the legal framework is rare and unreliable. The estimates for non-legal/unsafe abortions are largely speculative and range from 2 to 5 (ICMR 1989, Karkal 1991) to 10 to 11 illegal abortions (Chhabra 1994) for every legal abortion. The ’80s and ’90s have shown marginal increases (about 4.5%) in the number of approved abortion facilities and in fact a relative fall (about 1%) in abortions reported by these approved facilities (GOI 1998). Access to safe abortion care is further hampered by regional as well as urban/rural inequity in availability of abortion facilities (CORT 1997). A review of public sector abortion facilities reveals that in most states less than 20% of PHCs provide abortion services (ICMR 1991, Khan 2001).
A large proportion of PHCs (30 to 51%) though approved, have never provided MTP services either due to lack of infrastructure or trained manpower or both. Where private facilities coexist with public ones, women prefer private abortion care facilities leading to underutilization of public facilities. Thus in reality, only about 3 to 7% PHCs currently provide MTP services, revealing a wide gap between the reported status of registered MTP centres and their functionality.
A majority of first trimester abortions are still being induced by dilatation and curettage, with less than a quarter of providers preferring vacuum aspiration (CORT 1997, George 2003, Iyengar 2002, Iyengar 2003). The quality of abortion services in terms of counselling, privacy and confidentiality is poor, especially in the public sector.
Despite a liberal abortion policy, there has been no significant increase in the number of legal abortions in India, implying an overall increase in illegal abortions. Legalization has not translated into improved access to safe abortion care, access to which remains inequitably distributed. Awareness of the legality of abortion and/or misconceptions about the law among women and providers is low (Ganatra 2000, Ganatra 2001, Ganatra 2002, Gupte 1997, Malhotra 2003). This paper looks critically at abortion policy (National Population Policy 2000, MTP Act, Rules and Regulations and other relevant technical documents) and practice, with a view to advocate increased availability and access to safe abortion care.
The MTP Act, Rules and Regulations define when (gestation limits, under what conditions), by whom and where an unwanted pregnancy can be legally terminated. The act offers full protection to the registered medical practitioner against any legal or criminal proceedings for any harm or injury caused to a woman seeking abortion, provided that the abortion has been or intended to be done in good faith under the provisos of the MTP Act. The law is so liberal in its scope that it virtually allows an unwanted pregnancy to be terminated under any condition which may be presumed to construe a grave risk to the physical or mental health of the woman in her actual or foreseeable environment – as when pregnancy results from contraceptive failure, or on humanitarian grounds (such as when pregnancy results from a sex crime as in rape or intercourse with a mentally challenged woman), or on eugenic grounds (where there is reason to suspect substantial risk to the child, if born, to suffer from deformity or disease).
The act allows medical termination of pregnancy up to 20 weeks gestation. In the event of a MTP to save a woman’s life, the law makes certain exceptions – the doctor need not have the necessary experience/training criteria stipulated in the MTP Rules but still needs to be a registered allopathic medical practitioner, a second opinion is not necessary for abortions beyond 12 weeks, and the facility may not have prior certification. In such situations the provider is required to report an abortion done to save a woman’s life within one working day. The law is unclear about an abortion beyond 20 weeks done to save a woman’s life.
Amajor critique of the MTP Act is its apparent over-medicalization. Abortion policies conceived with the intent to safeguard the woman’s life from the consequences of unsafe abortion confer a monopoly on medical opinion. A ‘physicians only’ policy excludes mid-level health providers and practitioners of alternative systems of medicine from the purview of legal abortion. The mandate of a second medical opinion for a second trimester abortion (12 to 20 weeks gestation) adds yet another barrier to access. Another critique has been the focus of safe abortion care for women in the ‘marital’ context, implying a denial of such care to an unmarried woman in need of terminating an unwanted pregnancy.
Abortion policies recognize all public health institutions as abortion facilities by default. This commits the state to provide abortion services at each public health institution. However, the lack of need for certification in the case of public health institutions potentially exempts them from any regulatory process unlike the private sector.
The assumption that a health institution by virtue of being in the public sector is accountable to the public at large, has regulatory processes and does not need explication in the abortion policy, is not valid as such regulations often tend to be defunct or lack transparency. In the larger interests of an equitable and transparent policy, abortion policies need to explicitly apply the same exacting standards to the public and private sectors and explicitly subject the former to the same audit process that it expects of the private sector.
Amajor gap in abortion policy in India is the lack of a policy link with good clinical practice and research. An absence of national technical guidelines, which conform to inter national guidelines (WHO 2003; GOI 2001), fails to ensure ‘good clinical practice’ even at approved abortion facilities. Consequently, providers often practice sharp curettage for inducing abortion and use general anaesthesia – a procedure not recommended (McKay 1985; Osborn 1990) as it increases the rate of haemorrhage associated with vacuum aspiration. An abortion policy in the absence of a clear reference to ‘research and practice’ is unable to adapt improved and safer abortion practices brought about by newer abortion research and continuously evolving reproductive technology.
The Centre has provided specific guidelines for the states to frame regulatory procedures for abortion. While the majority of states have adapted these regulations without major changes, some differ in how they interpret and implement them. With the intent of ensuring safety and preventing unsafe abortions, some states have added layers of non-essential procedures and subjected the regulatory process to administrative delays and unnecessary control. Some states have framed MTP regulations which are inconsistent with policies – e.g. a need for a blood bank within 5 km of the proposed abortion facility – a requirement both impractical and unnecessary.
The irrational nature of such over-zealous regulations by the state becomes apparent when these requirements are applied only for abortion facilities in the private sector and not the public sector. Some states require floor area and architectural plans of the hospital, provision of car parking, and so on to be submitted for registration. Yet another state requires a one-time certificate from the microbiology department of a medical college that the operation theatre of the proposed abortion facility is sterile, based on a negative swab report.
The time and effort to procure registration for an abortion facility overall reflects the state’s attitude and approach towards facilitating abortion. Mismanagement, corruption, cumbersome tedious processes and no response are common problems encountered during the registration process (Bandewar 2002). The amended MTP Rules, 2003 attempt to address some of these issues of administrative delays by specifying a time frame for the registration process. Low awareness and misconceptions about the law among doctors are other factors resulting in low registration levels of abortion facilities (FOGSI 2002).
Another critique is the monitoring of post-abortion contraceptive use rather than contraceptive counselling, information which the state may abuse to penalize providers for not meeting ‘family planning targets’. Such monitoring also results in the public sector provider coercing the woman to accept contraception (Ganatra 2000). The overall mindset of the state is to ‘control’ rather than ‘facilitate’ abortion services.
Though several technical, legal and rights based recommendations were suggested, the MTP Act was amended only in three areas. The first is a replacement of the term ‘lunatic’ by ‘mentally ill’ person. A more substantive change seeks to decentralize the administrative and legislative process from the state to the district level. This amendment stipulates the creation of a district committee comprising of representatives from government and NGOs, empowered to approve abortion facilities and ensure provision of safe abortion care. Though well intended, a critique has the potential of abuse as well as varying interpretations and misinterpretations of abortion law by district authorities.
The MTP Act also stands amended to provide punitive measures of 2 to 7 years rigorous imprisonment to a provider/owner of a place not approved or maintained by the government. The amended MTP Rules mandate the district level committee to inspect the abortion facility within two months of receiving an application for registration and in the absence of or after rectification of any noted deficiency in the abortion facility, for the approval to be processed within a couple of months. However, the amended MTP Rules do not specify measures or redress mechanisms if certification procedures are not completed in the stipulated time frame.
A major change in abortion policies is the rationalization of place criteria for physical standards. While the physical standards for a facility to perform second trimester abortion remains as before (operation table, abdominal/gynaecological surgery instruments, anaesthesia, resuscitation and sterilization equipment, and availability of emergency drugs and parenteral fluids), the amended MTP Rules stipulates physical standards appropriate to perform first trimester abortion (gynaecological examination or labour table instead of an operation table, resuscitation and sterilization but not anaesthesia equipment, emergency drugs and parenteral fluids).
When first trimester abortion is performed by trained personnel using correct techniques, complications are rare. The amended MTP Rules allow for approval of abortion facilities without the necessity of on-site capability of managing emergency complications. However, every abortion facility at all levels needs to be equipped and have personnel trained to recognize complications and provide or refer women to facilities capable of emergency care.
The amended MTP Rules 2003 permit a registered medical practitioner (e.g. a family physician) to induce medical abortion in his/her clinic using mifepristone up to seven weeks gestation provided that the doctor has either on-site capability or access to a facility capable of performing surgical abortion in the event of a failed or incomplete medical abortion. However, the Drug Controller of India has licensed mifepristone for use up to seven weeks gestation only on the prescription of a gynaecologist, restricting access to urban areas. National guidelines and protocol (GOI 2002) for medical abortion are currently being developed.
The National Population Policy of India 2000 (GOI 2000a) encourages the promotion of family planning services to prevent unwanted pregnancies, but also recognizes the importance of provision of safe abortion services which are affordable, accessible and acceptable for those women in need to terminate an unwanted pregnancy. India is committed to safeguarding human and reproductive rights as relevant to abortion articulated in various international forums (UN 1995; UN 1996; UN 1999; UN 2000).
Historically, the abortion liberalization debate in the 1960s was largely influenced by medical and demographic concerns and was isolated from the feminist movement. The human and reproductive rights agenda became center-stage only in recent years since ICPD. About 27% of nations globally (UNDP 1999) have policies which provide ‘on request’ abortion services. In India, though abortion is legally permissible under a wide range of situations, the doctor has the final say. A woman has to justify her reason for seeking abortion.
In the event of a MTP to limit family size, the abortion law requires her to state that the pregnancy was wanted at the time of conception but subsequently unwanted though in reality the pregnancy may have been unwanted even at the time of conception itself – thus creating an environment of falsehood. This situation makes the abortion law open to differing interpretations and though the present socio-political environment allows a more liberal interpretation of the abortion law, there is always a potential danger of it becoming restrictive under different socio-political and demographic compulsions (Jesani 1993).
From an ethics perspective, abortion policies adhere to principles of respect and autonomy by creating enabling environments to facilitate free and informed decision-making and confidentiality (WHO 2000). Though abortion policies do not require spousal or third party consent for termination of an unwanted pregnancy (except in the case of a minor), in reality abortion providers often insist on such practices which are not required by law and become a barrier to access safe abortion care. These practices are then misinterpreted as ‘required by law’ and over time become congruous with the law itself. Providers often resort to ‘informal fees’, exploiting a woman’s vulnerability and low awareness of the law. It becomes necessary to identify such barriers to safe abortion care and review measures to end such ‘misguided and/or outdated practices.’
The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT Act) enacted in 1994 and subsequently amended in 2003 by the Government of India provides for the regulation of the use of prenatal diagnostic techniques and for prevention of their misuse for the purpose of prenatal sex determination leading to female feticide. The PNDT Act prohibits the use of any such techniques to determine the sex of the fetus and advertising of such use and requires all facilities using these techniques to be registered and prohibits persons conducting such techniques to reveal the sex of the fetus.
Following a concerted public debate against sex determination and female foeticide, the effect in some states was an implied overall ban on abortion. The fallout was a denial of safe abortion services even to women with a legitimate need for terminating an unwanted pregnancy, forcing women to take recourse to illegal and unsafe abortion. A policy review meeting to discuss modifying the MTP Act in the context of prevention of misuse and abuse of the PNDT Act (GOI 2002a) suggested reducing gestation limits for abortion from 20 to 12 weeks, reporting the identity of the woman seeking abortion and recording the sex of the aborted foetus. However, experts resolved that the MTP Act and the PNDT Act did not conflict or contradict each other and there was no need to amend the MTP Act in the context of the PNDT Act.
The suggestion to reduce the gestation from 20 to 12 weeks is detrimental to the woman and in fact encourages her to seek unsafe abortion services. At risk are adolescents or unmarried women who often seek abortion late in the second trimester. Strict compliance and implementation of the MTP Act is what is required. Recording the sex of the foetus is not only unethical, but also make early abortions done for legitimate reasons suspect and indirectly make access to safe abortion services more difficult. Confidentiality is one aspect which cannot be compromised so as to avoid stigmatization as also to ensure the woman’s reproductive rights.
Several national level advocacy efforts (PSS 1994, FPAI 2002, CEHAT 1998, GOI 2000) involving policy-makers, professional groups, NGOs and health activists are striving to improve access to safe and legal abortion services in India. Most policy recommendations are in line with the objectives and Action Plan of India’s National Population Policy, 2000. Increasing availability, creating qualified providers and facilities, simplifying the registration process, delinking place and provider, linking policy with technology and research and good clinical practice, providing comprehensive and quality abortion care are some of the immediate policy measures needed to bring about a change in the current abortion scenario in India.
There is a need to enhance awareness about both contraceptive and abortion services – especially among adolescents within the larger context of sexual and reproductive health – integrating strategies and interventions within value systems, family and gender relations. The guiding theme of any policy advocacy effort is ‘making abortion safe and available’, dispelling common misconceptions, which affect access to safe abortion care (Hord 2001). The issue of abortion care is complex – influenced by religion and morals, the socio-political context, and sexual politics. The not-so-covert link with population policies often results in an intentional oversight of its misuse as a method for fertility control.
Dilemmas and conflicts between an individual woman’s right to decide freely about her reproductive and sexual health and the state’s social responsibility to population control, need to be resolved not only through policy statements but also action. For a liberalized policy to be effective, it needs to be backed by political will and commitment in terms of adequate infrastructure support, accompanied by social inputs with the woman in focus. Advocacy and action at both central and state level are required to translate the operational strategies relevant to abortion detailed in the National Population Policy, 2000.
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