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Just how progressive is India's new abortion law?

Seerat Chabba New Delhi
November 18, 2021

When India first passed its abortion legislation in 1971, it was one of the most progressive laws in the world. Fifty years and an amendment later, the country is struggling to offer rights-based abortion care.

Many women's rights organizations say the new legislation doesn't go far enough
Many women's rights organizations say the new legislation doesn't go far enoughImage: picture-alliance/dpa/D. Fiedler

Shilpa (name changed) found out she was pregnant at the age of 21. She had just enrolled herself into graduate school in India's commercial capital of Mumbai. Distraught and alone in a big city, she took an auto-rickshaw to the nearest hospital and got an appointment with a gynecologist.

Braving judgmental glances, the first question that she had to answer was: "Are you married?" In many parts of India, this question is asked when the doctor wants to know whether the person has been sexually active. Premarital sex remains taboo.

Eight months after medically terminating her pregnancy, Shilpa moved to Bangalore for her first job. A few weeks later, she began receiving calls from odd numbers. Multiple men called her at different times — day and night — and asked her questions like "Did you kill your child?" "Do you have a husband?" "Are you sleeping with other men?"

Her contact details had been leaked, either from the first hospital she visited or the gynecologist's clinic. But no one took responsibility for the harassment she faced. Finally, she blocked all unknown callers and changed her phone number.

India has some of the most progressive legislation when it comes to reproductive rights. However, the social stigma attached to abortion, in conjunction with a lack of knowledge about a woman's rights, leads to several harrowing incidents like the one Shilpa had to face.

What are the changes?

In order to provide comprehensive abortion care to all in need, the government of India recently amended the Medical Termination of Pregnancy (MTP) Act 1971. The new legislation means the upper gestation limit for several categories — including survivors of rape, victims of incest and other vulnerable women — has been increased from 20 weeks to 24 weeks.

Under the penal code it’s a crime to get an abortion, but with the MTP in place, exceptions are permitted in such instances. Others can also get the procedure if they have the consent of the doctor before 20 weeks.

This limit does not apply to cases of substantial fetal abnormalities diagnosed by a medical board.

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In addition to this, the opinion of two health care providers is required for the termination between 20-24 weeks. Before this period, only one provider's opinion is required.

Finally, the bill introduced a confidentiality clause, under which the name and other particulars of women cannot be revealed except to a person who has been authorized by law.

The new rules aim to extend MTP services to unmarried women under the failure of contraceptive clause, providing access to safe abortion by choice and not marital status.

"This is a win for the collective wish of women in India. The amendments have increased the ambit and access of women to safe and legal abortion services," Dr. Sumita Ghosh, additional commissioner at the Comprehensive Abortion Care, Child Health and Adolescent Health, on behalf of the Indian government, said in a statement.

But reproductive rights organizations say legislation is just the first step in the right direction.

Legality vs. practice

While India's abortion laws were not rights-based, at the time the MTP Act was passed, in 1971, it was one of the most progressive pieces of legislation on reproductive rights in the world.

Fifty years later, the basic purpose of the law remains the same: to protect providers as abortion remains a crime under the Indian Penal Code, according to the Pratigya Campaign, a network of individuals and organizations working towards protecting and advancing women's rights and their access to safe abortion care in India.

"In spite of the amendments passed, it is still not legislation that advances women's rights or ensures dignity and justice. Women and girls will continue to face significant barriers in accessing safe abortion in India," the Pratigya Campaign network said.

The biggest barrier remains the "failure of contraception" clause. While this is often seen as a free pass where the medical practitioner takes the decision based on good faith, it is completely dependent on the attitude of the doctor.

In many cases, pregnant women are asked for proof of identity or even marriage certificates before the doctor signs off on the procedure. There are no safeguards to prevent exploitation.

"A great opportunity to craft a truly progressive, rights-based abortion law for the country has been missed," the Pratigya coalition said.

Beating the stigma

For a country that claims to have progressive abortion laws, India also sees unsafe abortions as the third-leading cause of maternal deaths. Close to 80% of Indian women have no idea that abortion within 20 weeks can be legal.

The concept of choice remains a precarious one in the Indian setting.

"In a country of 1.36 billion, there are only around 50,000-70,000 OB-GYNs (obstetrician-gynecologists)," Dr. Suchitra Dalvie, a gynecologist and co-founder of the Asia Safe Abortion Partnership, told DW. "Most of these are based in cities or towns, and not all of them are either pro-choice or undertaking abortion provision."

Referring to the amendments as a story of missed opportunities, she outlined some major themes that she says were missed, including the shift of power from the health care providers to the individual who did not want to continue the pregnancy.

In addition to not changing the language to reflect "pregnant persons" and not women, which Dalvie says would have made the law trans-inclusive, the amendments do not increase the pregnant person's autonomy and agency or take a step towards decriminalizing abortions.

The amendments also cannot ensure that no one is turned away or forced into an unsafe abortion, or provide for better access to medical abortion pills.

"I come from a position of privilege but that didn't stop someone from harassing me over my choice," Shilpa told DW. "For millions of women who don't have access to legal recourse, abortion care remains a distant dream."

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Edited by: John Silk