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.

This is excerpted from the speech given by Dr Saroj Pachauri on the occasion of the Global Health Strategies meeting held on the 24^th of November, 2017 in New Delhi, India. Dr. Pachauri is a Population Council Distinguished Scholar.

The passing of the Medical Termination of Pregnancy Act in 1971, was a landmark in the legalization of abortion in India. The act was the culmination of a decade’s worth of public debate that started in the early 1960’s and led to the setting up of the Shanti Lal Shah Committee. The Committee submitted a positive report on the need to liberalize and legalize abortion, and resulted in discussions of appropriate regulatory frameworks and laws. The unanimously adopted MTP Act of 1971 is a result of that debate.

The MTP Act of 1971 permits the termination of pregnancy in the following two cases:

• Where continuation of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health; and
• Where substantial risk exists of the child being born with serious physical or mental abnormality.

 Further, pregnancy caused due to rape or due to the failure of contraceptive methods also falls under the ambit of the Act, as the “anguish caused by such unwanted pregnancy may be presumed to contribute a grave injury to the mental health of the pregnant woman”.

Since the Indian Penal Code criminalizes abortion, this Act served to allow exceptions under certain conditions.

The origin of the MTP Act and the changes in regulatory controls on abortion stemmed initially from concerns about high maternal mortality in India, and the process was led by the medical community. Thus, the MTP Act is a highly medicalized Act.

Its twin objectives were:

• The liberalization of the grounds on which abortions were possible, and
• Strict controls for the conduct of the procedure, which would ensure that only legally recognized, skilled medical practitioners could provide it.

However, despite the presence of such a liberal law, at least 60% of all abortions seem to be conducted outside the legal system. The question remains, why?

Part of the explanation lies in the fact that although the law was conceptualized in the interest of women, and with the full support of the medical community, it relied on a vision of a far too idealistic healthcare system, rather than what was available in reality. On the ground, healthcare service provision was far less organized and regulated than what was assumed.

Moreover, the Act while liberal in its mandate, has several restrictions that relate to who can provide abortion services and where; abortion services can be provided by a Registered Medical Practitioner, at a registered facility, within 20 weeks of pregnancy. Consequently, one of the impacts of the rules and regulations drawn up under the MTP to safeguard women strangled the growth of services.

Furthermore, the context for the delivery of reproductive health services for women has changed significantly over the past decades. When the MTP Act was passed, the legal context was NOT the Government’s recognition of women’s rights to control their own sexuality, fertility, and reproduction, which, arguably, it is today.

Thus, the ideological underpinnings of the concept then and now are radically different.

Therefore, despite being a landmark in social legislation in 1971, the MTP Act has failed to translate into reality for the majority of Indian women, particularly the rural poor.

In the next part we call attention to how subsequent changes in the larger legal framework and attempts to amend the MTP Act itself, further complicate the situation.