In India, abortion access remains a pipedream for many

Sunita is an Accredited Social Health Activist (ASHA) from Katlupur village in the north Indian state of Haryana. As an ASHA worker, Sunita helps women in rural India access healthcare facilities and, among other services, abortion.

"The right to access an abortion in India is fraught with multiple challenges," Sunita told FairPlanet. "Abortion is considered a sin by many in the country, and even when families permit a woman to get an abortion, the government often fails them."

The lack of adequate abortion kits at government facilities forces many women to terminate their pregnancies at home. This, coupled with the fact that government hospitals are typically located nearly 50 kilometres from villages, compounds the economic burden that prevents many families in rural India from accessing proper reproductive healthcare services.

"I remember one particular case, where the family bought an abortion kit from their local chemist, and got the fetus aborted at home," Sunita recalled. "However, the procedure was not done properly, and the bleeding did not stop even after 22 days had gone by. When we took the woman to the hospital, her hemoglobin count was at five, and she also had a clot of fetus left in her womb."

Abortions in India: A Legal Background

India's Medical Termination of Pregnancy (Amendment) Act, 2021 guarantees access to safe and legal abortion services, and was passed as part of a larger attempt to ensure universal access to comprehensive care. The amendment extended the timeframe within which a person can access safe and legal abortion from 20 to 24 weeks, and added a confidentiality clause.

The law also recognises contraception malfunction as a reason to seek the termination of a pregnancy, regardless of the woman's marital status.

Before the amendment to the MTP Act, 2021 a woman could only get an abortion if the length of her pregnancy did not exceed 12 weeks. If the pregnancy exceeded 12 weeks, but not 20, she was subject to an approval from a medical board. 

While access to safe abortion is legally guaranteed in India, the scenario is completely different as far as implementation goes. A 2022 report by the United Nations Population Fund reveals that nearly 67 percent of abortions in India are deemed unsafe. The report also states that eight women die from unsafe abortions every day on average in the country and that one in every seven unintended pregnancies in the world happens in India. 

The Indian Health Ministry’s Rural Health Statistics 2019-20 Report also found that since nearly two-thirds of India’s population lives in rural areas, accessing obstetrician-gynecologists can be a severe challenge. This forces many women to rely on midwives, quacks and auxiliary nurses, which puts the woman’s life at risk. 

"Women in India also suffer from a serious lack of awareness," Sneha Mukherjee, a human rights advocate who worked on issues related to women's sexual and reproductive rights in India, told FairPlanet.

Mukherjee went on to criticise the MTP (Amendment) Act, 2021, saying that the law merely gives women an illusion of agency over their bodies. 

"While the Act ensures that women do not need to seek the approval of their husband, partner or family if they wish to get an abortion, provided they are an adult and of 'sound mind,' " Mukherjee explained, "in reality, women are often asked to get permission from their partners or family before getting an abortion." In such cases, Mukherjee highlighted, the woman's confidentiality and privacy are compromised. 

The stigma surrounding abortion in India is another factor preventing women from accessing safe abortion practices. With motherhood being looked at through a high moral prism in the country, families often object a woman’s wishes to abort her pregnancy - a fact that tends to take an additional toll on women's mental health. 

Mukherjee recounted another case from 2018, in which she represented a woman who was a domestic abuse survivor and wanted to terminate her pregnancy. The woman, who was 19 years old at the time, was denied an abortion by the Bombay High Court after the Court observed that there was 'nothing wrong with the fetus.' 

"We then approached the Supreme Court," she said. "The Judge, while pronouncing the verdict against the appeals of the woman, rebuked me for representing the woman."

The MTP (Amendment) Act, 2021: An Intersectional Critique

One of the principle critiques of the MTP (Amendment) Act, 2021 is that it erases trans-men and does not provide them with a proper procedure wherein they can consult a gynecologist.

Regarded as 'women-centric,' the Act has been criticised by members of the trans community in India, who are of the view that the government needs to provide a support system in order to usher in a major transition in the way trans-men are looked at by medical professionals.

Zorawar (an alias), a trans-man, told FairPlanet that self-identification often leads to many questions in India, where most of the discourse around gender takes place within a binary framework.

"Post-transition, a person comes with a moustache and other body changes and there is a lot of post-transition stigma around you, which might prevent you from going to a medical institution where you will be questioned," he said, "and you might not even get examined."

Stigma and erasure also prevents members of the trans community from coming forward with their stories, which further constricts them to a realm of invisibility.

While trans-men in India do give birth, they are typically married to cis-men, and cases of trans-men being forced to have children without their consent are rampant in the country.

In cases where a trans-man decides to come out and identify themselves as trans, they might be forced to give up custody of the child, with the courts being biased in favour of the cis-gender partner. 

Echoing these sentiments, advocate Mukherjee said that people from marginalised communities, tribal women, sex workers, HIV positive women and underage girls find it even more difficult to access safe abortion services. 

Since the Prevention of Children from Sexual Offences Act, 2012 (POSCO) criminalises sexual activity below the age of 18, trans-adolescents and girls who wish to access abortion services by law have to approach the police.

"As far as POSCO is concerned, a doctor is legally bound to report the case to the police should they come to know of it," Mukherjee said. "Whether or not they treat the patient thus becomes secondary in such cases."

"Due to the conflict between the MTP (Amendment) Act and POSCO," she added, "it becomes nearly impossible for such people to access contraceptive information services or safe abortion services."

The Way Ahead

While the implementation of MTP (Amendment) Act 2021 is rife with challenges, experts have called for the law to become more inclusive and take into account the concerns of the trans community as well.

There have been growing calls for the law to simply refer to the 'rights of pregnant persons,' rather than focusing on the 'rights of pregnant women,' which makes the law exclusionary in the eyes of many. 

Commenting on the same, Zorawar said that it is also important that healthcare providers become sensitive to the needs of the trans community.

"It becomes necessary that the gynecologist tries to understand that a person who is on hormones might be facing some issues," he said, "and how those hormones might be impacting their body.

"The understanding and sensitivity of a healthcare provider both pre and post transition determines whether people access such facilities or not."

Mukherjee is also of the view that the power to take a decision over an abortion must ultimately lie with the pregnant person, seeing as it is their body which is being impacted.

"I think we need to believe that pregnant persons are capable of making their own choices," she said, "and creating unreasonable barriers in accessing safe abortion services creates risks to their health."

Mukherjee is also a vocal critic of mandatory medical boards, which determine whether a person can go ahead with an abortion if they have been pregnant for more than 20 weeks. 

Commenting on the need for better health infrastructure in rural areas, Sunita said that since there are plenty of vacancies in government hospitals, it becomes difficult for government doctors to handle the sheer number of cases. And with India's healthcare infrastructure being under severe stress, the risks of cases going unresolved or falling through the cracks increase manifold. 

"We also need more hospitals to be built, so that one does not need to travel around 50 kilometres to access good healthcare," Sunita said. "[And] we need to ensure that doctors become more sensitive towards the needs of their patients and do not judge them for the decisions they make with respect to their bodies."

Image by elCarito.