Four decades after legalization of abortion, poor women in India still do not have access to safe abortion services. Part of addressing this challenge requires an understanding of the legal framework for liberalizing abortion, starting with the MTP Act of 1971, the subsequent shifts in context. We attempt to do this through our two part blog series that focuses first on the Act itself and its shortcomings, and calls attention to other challenges to the regulatory framework in the second blog. The first blog in the two-part series can be read here.
This is excerpted from the speech given by Dr Saroj Pachauri on the occasion of the Global Health Strategies meeting held on the 24th of November, 2017 in New Delhi, India.
As we set out in the previous blog, despite the MTP Act, unsafe abortions far outnumber safe, legal procedures. Part of these concerns were sought to be addressed through the amendment of the MTP Act towards which considerable research and advocacy was dedicated.
The MTP Amendment Act of 2002 decentralized the regulation of abortion facilities from the State to District Level Committees. It also allowed Registered Medical Practitioners to provide medical pill abortions up to 7 weeks of pregnancy in a facility approved for providing abortion services.
A second round of amendments was proposed under the MTP Bill of 2014, which attempted to further liberalize the Act. It proposed an extension of permissible abortions from 20 to 24 weeks, and an exception to the time limit for termination in case of fetal abnormalities. It also proposed approval for Ayurvedic, Homeopathic, Yunani, and Siddha practitioners to carryout Medical Abortion.
However, in May 2017 the Prime Minister’s Office sent the Bill back to the Ministry of Health and Family Welfare with the recommendation to strengthen the draft, and the recommendations remain un-tabled.
While these efforts to amend the MTP Act were underway, simultaneously, other abortion-related processes complicated the picture, creating new barriers to safe abortion care.
The first of these was the furore around the issue of sex-selective abortions, which also captured a large media following. A result of this agitation was the Pre-Conception and Prenatal Diagnostic Techniques (PCPNDT) Act, passed in 1994.
Second, stemming from concern for child sexual abuse the more recent Protection of Children from Sexual Offences (POCSO) Act was passed in 2012.
There are serious conflicts in the framing of the MTP Act, the PCPNDT Act, and the POCSO Act. This is made worse by the fact that there is a lack of clear understanding of these Acts, not only among the users of services, but also among government officials (gatekeepers), and the providers of services.
For instance, officials carrying out stringent inspections to curb sex determination, end up clamping down on MTP Centers and gynaecologists legally qualified to provide abortion services. This has led to many qualified practitioners now being guarded in providing abortion services, especially during the second trimester, posing a major challenge to women trying to access services.
Similarly, the POCSO Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation. Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police. Consequently, service providers are hesitant to provide abortion services to girls under 18. Given that in this country some 45%-47% of girls get married under 18 years of age, this presents a huge problem. Thus, it is evident that the implementation of these Acts has unfortunately become major barriers to the effective implementation of the MTP Act resulting in further limiting access to safe abortion services in India.
Clearly, there is an urgent need to strengthen the MTP Act, and review and amend the conflation among the three Acts. And most importantly, to improve the understanding of the users, providers, gatekeepers, and all stakeholders of these three Acts.