The practice of interrupting healthy pregnancy is an ancient one throughout the world. The provisions regarding abortion in Indian Penal Code were enacted about a century ago. According to that law abortion was a crime for which the mother as well as abortionist could be punished in all cases except where it had to be induced for saving the life of the mother. This very stringent law had been observed in the breach in a large number of cases all over India. Whatever may be the moral and ethical feelings on the question of induced abortion it was an incontrovertible fact that a large number of women, most of them married, who have no necessity to conceal their pregnancy were willing to risk their lives in an illegal abortion rather than carry that particular child to term.
The Central Family Planning Board at their 16th meeting held on 25th August, 1964 expressed anxiety on the reported increase in the number of illegal abortions performed in unhygienic condition by untrained persons affecting the life and health of the women and recommended that a committee be formed to examine this question. Therefore, a committee under the Chairmanship of Shri Shanti Lal Shah, the then Minister for Health, Law and Judiciary, Government of Maharashtra was constituted in 1964 to examine the question of legalization of abortion. The committee recommended that the existing Indian Penal Code was too restricted and that it should be liberalized.
The Medical Termination of Pregnancy bill was introduced in Rajya Sabha on 17-11-1969 and referred to the Joint Select Committee where it was considered in detail. The bill was passed by Rajya Sabha and Lok Sabha on 27-5-1971 and 2nd August, 19'71 respectively and became an Act after President's assent on 10-8-1971. The Medical Termination of Pregnancy Act has been enforced from 1st April, 1972. The Act extends to the whole of India except to the State of Jammu and Kashmir.
The Medical Termination of Pregnancy Act 1971:
The Medical Termination of Pregnancy Act 1971, while allowing abortions under certain condition or circumstances, is often considered as a conservative law from a feminist perspective.
The Medical Termination of Pregnancy Act (Hereinafter referred as MTP) came into existence in 1971 based on the recommendation of the Shah Committee. The Act recognizes the importance of providing safe, affordable, accessible and acceptable abortion services to women who need to terminate a pregnancy under certain conditions, and legalizes abortion on therapeutic, eugenic, humanitarian and social grounds. It also aims to regulate and ensure access to safe MTP and also defines ‘when’, ‘Where’ and ‘By whom’ an MTP may be performed.
The Act, rules and regulations were amended in 2002-03 to facilitate better implementation and increase access for women by engaging the network of safe MTP providers including the private health sector. The key amendments of the Act and the Rules provided for the following:
• Power for approval and clarification private MTP centers delegated from the State level to the District level committee headed by District Chief Medical Officer (CMO);
• Specific punitive measures for MTPs performed by unqualified persons not certified as Registered medical practitioners ( RMP), under the Act, in places not approved under the Act and for the owners of such places;
• Bifurcation of facility required for first trimester ( up to 12 weeks) and second trimester (12-20 weeks) MTPs;
• Recognition of medical methods of abortion (MMA) as a method for termination of pregnancy.
Against such a backdrop, National policy and programme including National Population Policy (2000), Reproductive and Child Health (RCH) and the Reproductive, Maternal, New Born, and Adolescent Health Approach (RMNCH+A) within the framework of National Health Mission, have spelt out strategies to improve access to safe MTP services to women and reduce maternal mortality.
Proposed Amendment Bill 2014:
The Ministry of Health and Family Welfare, on October 29, 2014, had released a draft of the proposed MTP (Amendment) Bill 2014 which proposes to amend certain sections of the Principal Act i.e. MTP Act, 1971 by way of substituting certain words or clauses and of some sections of the Act, inserting certain new clauses under some sections etc. and strengthening access to Comprehensive Abortion Care (CAC), but under strict conditionalities without compromising service and quality of safe abortion.
Worldwide, abortion is acknowledged as an important aspect of women’s reproductive health and rights. Safe induced abortions enable women to opt out of unwanted and unintended pregnancy without endangering their life and wellbeing.
In India, it is estimated that approximately 6 million induced abortions are performed in a year, and in spite of legislation of abortion since 1971, almost two-thirds are performed under unsafe conditions. Eight percent of maternal deaths, i.e. 3520 of the approximately 44,000 estimated maternal deaths each year, are attributed to complications of unsafe abortion. This implies that everyday 10 women die in India as a result of unsafe abortion or its complications.
The MTP Act, 1971 recognizes the importance of providing safe, affordable, accessible and legal abortion services to women who need to terminate a pregnancy due to reasons on therapeutic, eugenic, humanitarian or social grounds. However, safe abortion services for women especially in the rural and the remote areas of the country is a challenge. Research data show that women in rural India have to travel between 20-40 kms to access abortion services. This is primarily due to non-availability trained providers for abortion services delivery despite efforts to strengthen the training and service delivery mechanism for the same.
The objectives of proposing suitable amendments which were focused on the following broad areas:
1. Removing the requirement of provider opinion up to 12 weeks of gestation. Reducing it from two providers to one for 12-20 weeks and proposing opinion of one provider for 20-24 weeks of gestation.
2. Registered Medical Practitioner (RMP) to be replaced with Registered Health Care Provider (RHCP). RHCP would include Ayurved, Unani, Siddha, Homeopath practitioners (Hereinafter referred as ‘AYUSH’); Nurses (With GNM and Higher qualifications) and ANMs.
3. Enhancing upper gestation limit from 20 to 24 weeks for special categories of women.
4. Upper gestation limit do not apply in cases of diagnosis of substantial foetal abnormalities.
5. Condition of failure of contraceptive to be extended for any women or her partner.
6. The name and any other particulars of a women whose pregnancy has been terminated, shall not be revealed.
Criticism by IMA to the proposed amendment Bill, 2014
The Indian Medical Association (Hereinafter referred as ‘IMA’) had opposed the proposed amendments to the new Medical Termination of Pregnancy (MTP) Act which allows Ayurvedacharyas, Homeopaths and Nurses to conduct MTP on pregnant mothers. Also, the provision for extending the gestational limit has been concerned, the Bill has received critical reviews from organized bodies within the medical community for its proposal to include non-allopathic healthcare practitioners, nurses and auxiliary nurse midwives. The contention of the critics is that including these groups will encourage quackery and put the health of women at risk .
Further, the Medical fraternity takes its support from the judicial precedents on the subject and states that the amendment allows persons to perform MTP who are so far not allowed by law to do so. According to Section 2(d) of MTP Act, 1971, provides for persons eligible to do MTPS. "Registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956, (102 of 1956) whose name has been entered in a State Medical Register and who has such experience or training in gynecology and obstetrics as may be prescribed by rules made under this Act.
The step taken by the government to amend the existing abortion law is against the interpretation given by the Honorable apex Court in the Poonam Verma Vs. Ashwin Patel and Others wherein the division bench headed by Justice Kuldip Singh and Justice Saghir said; “41. A person who does not have knowledge of a particular System of Medicine but practices in that System is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan.”
Also, the Judgment of the division bench of the apex court given by Justice K.T. Thomas and Syed Shah ,in the case of Dr Mukhtiar Chand & Ors. Vs. State Of Punjab & Ors ., where it was further clarified the rights of non-allopaths as regards practicing allopathy as follows: "………….But after Sub-Section (2) of Section 15 was inserted in the 1956 Act, with effect from 15.09.1964, which inter alia, provides that no person other than a medical practitioner enrolled on a 'State Medical Register' shall practise modern scientific medicine in any State, the right of non-allopathic doctors to prescribe drugs by virtue of the declaration issued under the said drugs Rules, by implication, got obliterated. However, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments." The court also observed: "… A harmonious reading of Section 15 of 1956 Act and Section 17 of 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian Medicine or Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act…”.
The above mentioned cases are in contradiction with the proposed amendments in MTP Bill 2014. Further, the draft bill 2014 has not captured conditionalities regarding place of service delivery, gestation limit, training requirement, technology etc.
Analysis
Even though abortions have been legal in India for a broad range of conditions and while public health facilities are expected to provide safe services, major barriers prevent women and girls with unwanted pregnancies from accessing the same. As a result, women and girls still continue to resort to backstreet providers which results in death and injury. Even today, every 2 hours a woman dies as a result of abortion related causes in India.
Apart from the draft proposal, in order to strengthen women’s access to safe abortion services, the following can also be looked into which is not addressed by the key amendment bill.
At present, there is limited mechanism to monitor legal or illegal abortions in our country. While welcoming the government proposal to improve access to safe abortion by conditionally extending gestation period, the government needs to strengthen the implementation of the Act and improve monitoring mechanism.
The training, certification and regulatory norms should be made stringent and the monitoring mechanisms effective – so as to improve the quality of service delivery.
There should be an exemption for women under the MTP Act. No legal action should be taken against women who come for abortion services.
The proposed amendments do not distinguish between the type of abortions to be provided by the medical professionals of AYUSH stream of medicines, nurses and ANMs. The Government of India, under the MTP rules – which serves as the guiding document, should prescribe the gestation limit, technology and training requirements for the new cadre of providers. This may be done in keeping in account the recommendations by the WHO articulated in the “Safe Abortion Guidelines, 2012” as well as by an expert committee.
The language in the amendment should be gender neutral. At all places the Amendments refers the registered health care provider as ‘he’.
Government should consider changing the title of the Act to ‘Safe Abortion Act’ instead of ‘Medical Termination of Pregnancy’ since there are different methods of abortion- surgical and medical, being provided not only by the medical professionals but also the para-medics as well. Also, the intent of the amendment should be to ensure that abortions made available are safe.
Inference:
The medical fraternity’s argument to the inclusion of AYUSH is not surprising as they have always enjoyed a monopoly over the subject matter ever since the era of liberalization. In an article by, Jesani and Iyer, wherein they try to draw readers’ attention towards the power vested in allopathic healthcare service providers by the 1971 MTP Act , which, along with the non-regulation of the private sector, creates a space for the financial exploitation or harrasment of women seeking such termination. Researchers have also have found that while the overall care provided to patients in the private health care is exceptionally good as compared to public health care providers but it means an increase in the patient's out-of-pocket expenditure . This is the reason which now calls for a separate policy to regulate the private sector. Thus the inclusion of trained mid-level healthcare providers i.e AYUSH will improve access to safe, affordable and legal abortion in the public sector and decrease dependence on the private sector.
Meanwhile on the one hand, it is necessary to expand the healthcare providers' base, and also vital to empower women within the healthcare fiduciary relationship. This is necessary for women who are explicitly covered by the MTP Act. These are the unmarried women, prostitutes etc In India, sexual relations outside the marital tie is often criticized, the lack of certainty of access to termination of pregnancy renders women vulnerable to such exploitation. The proposed bill, by realizing the need of the hour for unmarried women who seek abortion, explicitely removes this barrier, by introducing the clause for ‘special category’ which includes single mothers, unmarried women, etc. In addition it, the clause ensuring privacy or confidentiality increases the chances of women going only for legal terminations of pregnancy.
The clause requiring doctors to provide abortions on request during the first trimester allows women to demand termination without any justification. This choice will also now empower married women, who, because of the lack of gender equality within marital tie ups, are often forced to face sexual violence and then undergo a termination to limit the size of their family . It is often noticed that many of these women have several abortions, and doing away with the barrier of a physician's opinion and providing them access to mid-level healthcare providers within their community, as well as wider access to safe and less expensive techniques will result in their well being.
The extension of the gestational age to 24 weeks is likely to trigger ethical debates, as it did in Niketa Mehta's plea for an abortion at 24 weeks in the Bombay High Court in 2008 . Unfortunately the court denied her plea but in 2013 the National Commission for Women reviewed the case and strongly recommended that an abortion should be allowed up to 24 weeks, keeping in view that medical technology can detect some foetal anomalies only after the 20th week.
Another important concern is about eugenic abortions, it can be said that it is morally wrong for a society to prevent an individual women from accessing abortions, since it is the woman and her family and not the society that is expected to provide for the physical, emotional and mental well-being of the child. Similarly, sex-selective abortion should not become a deterrent factor in the extension of the gestational age. While second-trimester abortions are assumed to be the result of sex determination, there is no real evidence to suggest such a connection in the majority of cases .
Even if Parliament nods and passes the Bill without any further changes, the government merely cannot escape from shouldering the responsibility of ensuring its due implementation so that the outcome of such services are promising. The draft Bill 2014 has the potential to improve access to medical termination and also allow females to gain some command over their sexuality, fertility and reproduction, but it is possible only if the receivers are made aware of the proposed amendments. It is necessary for the government to take up the enormous task of training the mid-level and non-allopathic doctors, refereed as AYUSH in the bill. As mentioned above in, the Bill provides for a means to begin termination process but unfortunately not very clear on ‘where, how and by whom these new healthcare providers should be trained. As there is no clarity on training, the clause recommending the same could easily remain unimplemented or may be misused. The medical fraternity might perceive this draft bill as a threat because it would take away their power within the fiduciary (doctor–patient) relation setting as well as expand the healthcare providers' service base, it is their ethical duty to consider the probable impact of the draft Bill on reducing unsafe abortions and empowering the pink. Notwithstanding the fact that it is the ethical duty of medical organization to identify policy changes that might put a women's life in danger, their fears with regard to AYUSH healthcare providers are misplaced due to the wealth of evidence from around the world. The MTP Bill, 2014 promises to bring about significant changes in the existing laws of abortion care and marks a step towards a more women-centric, rights-based abortion laws in India.
FIWCL