Mumbai: A minor rape victim was forced to give birth to the child of her rapist after the Madras High Court denied her request for abortion under the Medical Termination of Pregnancy (MTP) Act of 1971. The victim was first examined by a doctor at 19 weeks, who declined to perform an abortion, even though it was permitted under the law. By the time her petition was heard, her pregnancy had crossed the 20-week limit beyond which abortion is prohibited under the MTP Act.

This case featured in a September 28, 2019, report authored by lawyers Anubha Rastogi and Raunaq Chandrashekhar of New Delhi-based Pratigya, an NGO that works to advance women’s rights to safe abortion in India.

Courts refused to allow minor rape victims an abortion in 17% of 82 cases between April 2016 and July 2019, the report said. Even though the MTP Act allows abortion until 20 weeks, 40 petitions seeking to terminate pregnancies under 20 weeks had to be filed in courts around the country between April 2016 and July 2019 because doctors refused to perform them. As many as 33 of these cases were filed by rape victims.

“By not allowing women access to safe abortion, you are leaving women with two choices: death (due to unsafe and illegal abortions) or the psychological and emotional consequences of a pregnancy they were not prepared for,” said Anand Pawar, executive director of Samyak, a Pune-based advocacy group that works for sexual and reproductive health rights of women in Maharashtra and Rajasthan.

The lack of clarity in the outdated MTP Act, along with lack of awareness of the law among women and doctors, limits women’s access to safe abortions, the report found. Further, doctors refuse abortions citing the law preventing sex-selective abortion, and legal processes in the case of child sexual abuse, even though neither of these laws restrict abortion. Delays in court decisions on abortions and the stigma around abortion also endanger women’s health, the report said.

As a result, 56% of abortions performed in India are unsafe, with 10 women dying of unsafe abortions each day, as IndiaSpend reported in November 2017.

Globally, around 47,000 women die annually as a result of unsafe abortions, according to the United Nations.

MTP Act vague, outdated

Under the MTP Act, a pregnancy can be terminated until 20 weeks after conception if it will harm the mother, if the pregnancy was the result of rape, if the child will be born with serious physical or mental defects, or in case of contraceptive failure.

For minors, written consent from parents is required, and unmarried women cannot cite contraceptive failure as a reason for getting an abortion.

The 20-week limit on abortion is based on outdated concepts from 1971 when abortion was viewed as a surgery performed by allopathic doctors, the Pratigya report said. Developments in medicine such as medical abortion pills and vacuum aspiration--a technique that uses suction to remove the foetus--allow for relatively safer abortions in advanced stages of pregnancy.

“Since the foetus is at its largest size at nine months when it gets delivered, the risk to the pregnant woman is bound to be less when the size is less,” said Suchitra Dalvie, a practising gynaecologist and co-founder of the Asia Safe Abortion Partnership. “Therefore, there is no risk to the life of the woman at any time during an abortion, assuming it is being done by a trained and qualified person in the safe way (at least not a greater risk than there is during delivery!).”

A pregnancy can be terminated even after 20 weeks if it is “immediately necessary to save the life of the pregnant woman”, the Act says, leaving it to the doctor to decide what constitutes an immediate threat. This makes doctors wary of performing an abortion after the 20-week period has passed, the report said.

“The MTP Act needs to be updated and revised as it is not in line with current technological advances,” said Rastogi, a co-author of the report. “A number of foetal abnormalities are detected after 20 weeks, which may turn a wanted pregnancy into an unwanted one. As long as the woman’s health is not at risk, she should be able to get an abortion on demand, at any stage.”

Unsafe abortions can result in serious infection, future infertility, sepsis, bowel injury, internal injuries, and even death, Dalvie said. Abdominal massages, drinking herbal concoctions and inserting sticks in the vagina are common methods to terminate unwanted pregnancies, according to this January 2018 article in The Lancet, a medical journal.

As many as 194 women filed writ petitions in the Supreme Court seeking permission for abortion between June 1, 2016, and April 30, 2019. As many as 97 of these cases involved rape victims, 82 of whom were less than 18 years old. Foetal abnormality was cited as the reason for seeking abortion in 88 of the cases.

Thirteen of the 82 pregnant minor rape victims were denied the procedure because the pregnancy had advanced beyond 20 weeks, as we said earlier.

The MTP Act should be amended to make abortion available to all women regardless of marital status and age, up until 12 weeks after conception, said Rastogi. The limit of legal abortion should be extended to 24 weeks, since abortions until that stage are safe, and the limit should not apply in cases of rape and foetal anomalies, Rastogi said, adding that an amendment to the law should be passed immediately.

A 2014 draft bill, not yet approved by parliament, proposes to allow abortion for up to 24 weeks’ gestation in rape cases, and to remove the limit altogether in case of specified abnormalities in the foetus, as IndiaSpend reported in November 2017.

Effects of early childbirth ignored

While the physical health of the pregnant woman is considered valid grounds for abortion under the Act, mental health, and the socio-economic implications of an unwanted pregnancy--particularly to survivors of rape--are not considered, the report said. The United Nations has declared that denying abortion to victims of sexual violence constitutes a human rights violation.

In India, court verdicts do not take into account the detrimental effect of childbirth on the health of a young girl. Complications from childbirth are the leading cause of death for 15- to 19-year-old girls globally, according to a February 2018 World Health Organization report.

“Risks from pregnancy to younger girls are much higher since the body is very small. Normal delivery is not possible,” Dalvie said. “Abortion is definitely better than delivery. Also, pregnancy at that age, due to rape, leads to mental health issues as well.”

Very few people know about abortion being legal, said Pawar of Samyak. For instance, less than half the women from Bihar and Jharkhand knew that abortion is legal, according to a 2012 BioMed Central study.

Too few gynaecologists

An abortion can be performed only by a registered gynaecologist and obstetrician who has completed one year of practice or assisted another with at least 25 abortions, according to 2003 guidelines from the health ministry. After meeting these requirements, a gynaecologist can perform abortion only in the first trimester (up to 12 weeks after conception), the guidelines say.

For abortion between 12 and 20 weeks, two registered medical practitioners must establish that the abortion is permissible under law.

Rural India has a 75% shortage of gynaecologists and obstetricians, with 85% specialist positions (4,757 of 5,624) vacant in community health centres, according to a 2019-20 report on the National Health Mission from Accountability Initiative, a research organisation.

To increase the number of qualified professionals providing abortion, Pawar recommends allowing doctors in sub-district hospitals to perform abortion. In addition, Ayurvedic, Unani, Naturopathy, Siddha and Homoeopathic doctors can be allowed to perform abortion as long as they are within reach of sub-district hospitals so that any complications that arise can be attended to promptly, Pawar said. These practitioners would require to be trained.

Doctors unaware

Section 19 of the Protection of Children from Sexual Offences (POCSO) Act of 2012 requires any person aware that a minor is pregnant to report her to the police, regardless of the girl’s consent. However, to avoid getting involved in legal proceedings, doctors refuse to treat and perform abortions on minors, the authors of the Pratigya report found.

As the POCSO Act does not distinguish between consensual sex and rape, every underage pregnancy is treated the same way.

“Fearing persecution under the POCSO Act, doctors subject women to extra-legal procedures--such as filing affidavits, etc., which have no basis in the Act itself--before they perform the abortion,” said Pawar. Because of this, victims of sexual violence, who are already involved in criminal proceedings, are reluctant to report their pregnancy, the report said.

Doctors also cite the Preconception and Prenatal Diagnostic Technique Act (PCPNDT) of 1994 to refuse abortion. Originally enacted to crack down on sex-selective abortions that were thought to be the cause of the declining sex ratio in the country, PCPNDT Act requires radiologists to not declare the sex of the foetus to the mother.

No provision in the PCPNDT Act prohibits abortion, yet doctors refuse, particularly after the second trimester, fearing prosecution under the PCPNDT Act, according to this September 2019 report by Crea, a feminist human rights organisation based in New Delhi.

Court delays

Similarly, approval by a medical board is not required to perform an abortion if it is legal under the MTP Act. But courts often ignore the medical advice of the woman’s own gynaecologist, and wait for the approval of a medical board, consisting of court-appointed gynaecologists. The boards do not consider the long-term effects of carrying a pregnancy to term and only allow abortions if there is an immediate risk to the life of the woman, according to the Pratigya report.

This “risk” is not defined in the Act itself, and its definition can be highly subjective, and could be influenced by personal beliefs, the report explained. The time spent in setting up a board and waiting for the board’s decision could push the pregnancy beyond the 20-week period, as happened in the case of the minor rape victim we referred to earlier.

In another instance, an HIV-positive rape victim from Bihar, who was denied abortion by Patna Medical College when she was 18 weeks pregnant, was forced to give birth as a result of delay by the Patna High Court in 2017, according to an August 2017 report in the Hindustan Times.

Rights of the foetus vs rights of the mother

The perception of abortion as a means of ending an unwanted pregnancy rather than a medical procedure for the well-being of a woman pits the woman against the foetus, the Pratigya report said. “However, the rights of the foetus do not find a basis in science or law.”

“As per (the) human rights statement, all humans are born free and equal and that is interpreted to mean that we are human only after being born,” Dalvie said. “As long as the foetus is inside someone's body, that person is a priority over the potential to-be-born foetus. However, many countries set a limit on what is called viability--the stage after which the foetus can survive independently outside the woman's body. This is usually considered 28 weeks, but as technology advances it can be earlier in some places. However a foetus is never considered a person while it is inside the woman's body.”

But not everyone agrees. Some doctors have moral qualms in aborting a foetus after 20 weeks, as we reported in November 2017.

Women do not have the absolute right to abort, said the Ministry of Health and Family Welfare in an affidavit submitted before the Supreme Court, according to this report published in the Hindustan Times in September 2019. The government wanted to remove Section 5 of the MTP Act that says abortions can be performed even after the 20-week period if the mother’s life is in danger.

Bhama Narayanan--undersecretary (reproductive and child health) at the Ministry of Health and Family Welfare--and the ministry spokesperson did not respond to our numerous calls and emails on the issue of amendments in the MTP Act. This story will be updated when they respond.

This story was first published here on Healthcheck.

(Iqbal is an intern at IndiaSpend.)

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Nushaiba Iqbal

    Nushaiba Iqbal works as a reporter and analyst at IndiaSpend.