The new abortion rules notified by the Government recently recognise minors as a vulnerable category and seek to make services more accessible to them. But social stigma and conflict with POCSO Act, 2012, or the law against child sexual abuse, pose hurdles.
The Medical Termination of Pregnancy Amendment Rules, 2021, define new categories of vulnerable women who are allowed termination up to 24 weeks upon meeting certain conditions and with the permission of two doctors. These include minors, survivors of sexual assault and those with foetal malformation among others. Others may seek abortion up to 20 weeks with the permission of one doctor upon meeting certain criteria — earlier you needed the permission of one doctor for termination up to 12 weeks, and two doctors for 12 to 20 weeks. The amended law provides for setting up of State-level medical boards to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities.
Third largest category
“Minors were included as a special category because it was found that a large number of them were approaching courts for permission to terminate pregnancies beyond 20 weeks. They were the third largest category after those with foetal abnormalities and rape survivors. Moreover, if you look at the social context, the detection of pregnancies in case of minors gets delayed, and then after that the need to negotiate and seek relevant care becomes all the more difficult,” says Vinoj Manning, Chief Executive Officer of the Ipas Development Foundation and Member, Campaign Advisory Group, Pratigya Campaign.
According to the National Family Health Survey (NFHS)-4 (2015-2016), women aged between 20 to 24 years who were married before age 18 were at 27% and nearly 8% women between the age of 15-19 years were already mothers or pregnant. Though nationwide data under NFHS-5 (2019-2020) is yet to be released, data for 22 States released in the first round shows underage marriage decreased in 17 States and increased in three States, teenage pregnancies reduced in 16 States and increased in six out of 22 States.
Further, contraception services rarely reach adolescents. According to a study by the Guttmacher Institute in March 2021, many adolescent women in India — 34 lakh — want to avoid pregnancy. This includes 32 lakh married women and 1.95 lakh sexually active unmarried women. Among women wanting to avoid a pregnancy, the proportion who have an unmet need for modern methods is much higher for adolescents (71%) than for all women of reproductive age (27%).
“Ideally, we need to delay child marriages. If that fails, we should give them contraception, which is our second failure. The third failure is denial of abortion services. The MTP Act will enable that the third failure doesn’t happen. But that doesn’t preclude us from working on the other two issues,” says Mr. Manning.
There is also a need to fight stigma around adolescent sex.
Access to contraception
“While the Government has extended the upper limit to 24 weeks for minors, we don’t know how much this move will help as adolescent girls find out about their pregnancy in the last minute, when they will be forced to go to medical boards. We need to do more for young people. We need to have information on having sex, ensure access to contraception and be less judgmental so that they don’t delay expressing their need for abortion,” says Poonam Muttreja, Executive Director, Population Foundation of India.
Medical practitioners also rue the obstacles posed by the Protection of Children from Child Sexual Offences (POCSO) Act, 2012, in providing services. Section 19 of the Act requires any person aware of a minor engaging in sex to report the matter to the local police even if it was a consensual act as the law pegs the age of consent at 18 years.
“There is evidence that as a result of POCSO, there is a dramatic drop in the percentage of minors seeking abortion. They will move out of the system. We have to find a solution for allowing a minor to get a safe termination without the fear of the police harassment,” says Dr. Nozer Sheriar, former Secretary-General and MTP Chair, Federation of Obstetric and Gynaecological Societies of India.
According to an RTI, in 2018-2019, the number of abortions in registered centres in Mumbai among those below 15 years fell below 95% and for those in the 15-19 years age bracket fell below 65% as compared to 2014-2015.
Chill factor for doctors
Acknowledging that POCSO introduces “a chill factor” for doctors, Mr. Manning says the challenge lies in educating them that mandatory reporting should not result in denial of service. “They need to provide the service, and then report the matter. Nothing in the POCSO Act says you can’t provide the service.”
While welcoming the extra one month for vulnerable women, Dr. Sheriar says the revision in the law has been a “lost opportunity” for India. “While we have some advances, I am not seeing a lot of freedom, autonomy and respect given to women. It is still the system making all the decisions.”
The Pratigya Campaign, a coalition of individuals and organisations working for access to safe abortion care, has demanded that abortions up to 12 weeks should be allowed as per the request or decision of the pregnant person instead of being a conditional right available only based on the opinion of the doctor. Women should also be allowed autonomy in decision making in case of later abortions with birth defects instead of the need to approach medical boards as lack of specialised healthcare experts to be appointed to these Boards will complicate access. They also highlight that the law caters to only pregnant women and fails to address the needs of the transgender people.
Globally, according to the Center for Reproductive Rights, India is behind 32 countries that allow abortion on request with varying gestational limits. But it is ahead of 24 countries that prohibit abortion altogether, 42 countries that allow abortion only if a woman’s life is at risk and 20 countries where it is permitted only on health grounds.
The move by India also comes at a time when there are fears that more than half of the U.S. could ban abortion. The U.S. Supreme Court is expected to hear arguments in a case on December 1 which could result in the weakening or overturning of the landmark Roe V. Wade — the landmark 1973 Supreme Court decision that affirmed the constitutional right to abortion.
According to experts at Guttmacher, if Roe V. Wade falls, a ban on abortion —a total ban, a ban at 15 weeks of gestation and a ban at 20 weeks of gestation — could become a reality in at least 26 States.