The Narrative of Accessing Abortion Services in India :- One Step Forward, Two Steps Back
One Step Forward, Two Steps Back
The narrative of accessing abortion services in India
Alka Barua, Souvik Pyne and Abhiti Gupta
India through its endorsement of international agreements has demonstrated its commitment to upholding reproductive health and rights of its citizens. The country prides itself on having a progressive legislation on the termination of pregnancy, which is more advanced than in many high-income countries. The 2021 amendment of the existing Act and the landmark Supreme Court judgement in 2022 that recognised marital rape, talked about all women’s autonomy to freely exercise their reproductive rights, and the entitlement of unmarried women in a consensual relationship to safe and legal abortions marked substantial steps forward, intended to expand benefits, reach and options for individuals in matters of abortion. However, the failure to actualize these intended advantages for the women the law is designed to support negates its very purpose, as illustrated in the recent case judgement of the Supreme Court.
In this specific case, a twenty-seven year old married woman with two children filed a petition under Article 32 seeking permission to terminate her on-going pregnancy. The petitioner, who was suffering from post-partum psychosis had conceived in lactational amenorrhoea. She became aware of her pregnancy only around 24th week of gestation. Her initial requests for termination were denied at the hospitals she visited. As her mental and economic condition did not permit her to raise another child, she approached the court for permission.
Based on ultrasound results and recommendations from the AIIMS medical board, the court in its order dated 9th October 2023, initially granted permission for termination, citing the risk to petitioner’s mental health. However, on 10th October, an Obstetrician member of the same AIIMS board expressed concerns about ‘Foeticide’ to the Additional Solicitor General, Government of India. This ‘moral’ concern, lacking explicit legal or medical grounds, was subsequently presented to a two judge bench in the Supreme Court. A split verdict from the two judge bench escalated the case to a three judge bench, including the Chief Justice of India. This three judge bench requested the AIIMS medical board to re-evaluate the presence of foetal abnormalities and implications of the petitioner continuing her postpartum psychosis medications for her pregnancy. The medical board reported the absence of abnormalities and recommended an alternative protocol for managing her mental health issues. Based on this report and the subsequent deliberations, the Supreme Court denied permission for termination of pregnancy citing the statutory limit of 24 weeks and absence of “substantial foetal abnormalities”.
The case underscores a spectrum of concerns and issues with far-reaching implications for persons seeking termination of pregnancy. The denial of services by hospitals around 24th week of gestation suggests a need for broader awareness regarding recent amendments and Supreme Court ruling. Health care facilities where second trimester terminations could have been conducted with the opinion of two doctors as stipulated in the MTP Act, declined to provide this service.
The lack of clarity exhibited by the Obstetrician in undertaking the medical procedure, despite the presence of MoHFW guidelines for the same took centre stage in this case. Concepts such as ‘foeticide’ (a scientifically inaccurate term) and ‘stopping foetal heart’ assumed central role. All these deviations from the pregnant woman’s narrative infringed upon her right to bodily autonomy. Her lived experience of the pregnancy and her decision to discontinue it were relegated as secondary concerns. Even more concerning is the approach to the pregnant woman’s mental health issues, despite the clear provision 3(2)(i) of the MTP Act which permits termination in cases of grave injury to mental health and acknowledgment of the medical board of the petitioner’s mental health condition.
The focus on the pregnancy and the foetus with limited consideration for the pregnant woman’s mental health and her capacity to adapt to changed medications, highlights the lack of primacy given to mental health issues. It can be argued that the core principle of medical ethics, non-maleficence towards the patient, was undermined by shifting the medication protocol and elevating the impact on foetus over the woman’s mental health. The use of term “foeticide” and the shift in focus towards foetus’s viability deviate from the language and spirit of the MTP Act and diverting attention from the centrality of the pregnant person which has been enshrined in the MTP Act.
Other issues to contemplate include the rationale for establishing a medical board, the effect of anti-psychotic medications and the time frame required to navigate the entire legal process. The boards were instituted not only to leverage members’ medical expertise in making decisions but also to prevent such cases from reaching the courts. In cases like these, where pregnancy termination in the second trimester is already a formidable challenge, this ruling could deter those who surmounted numerous obstacles to reach this stage.
There is well documented evidence of the adverse effects of anti-psychotic medications, which can cross the placental barrier and result in abnormal foetal growth, preterm birth, metabolic disturbances and potential teratogenic effects aside from causing congenital abnormalities. The AIIMS board categorically stated that ultrasound scans may not detect all foetal abnormalities, further complicating the matter. Conversely, the reiteration that only foetus with ‘abnormal development’ be terminated reinforces the concept of ableism and accentuates the eugenic undertones of the Act. In a previous blog, we voiced concerns about how the disproportionate liberty accorded to eugenic conditions in the MTP Act might pose difficulties for pregnant persons seeking termination.
While legal proceedings in the court were expedited to the extent possible, the question that remains is who bears the consequences of a pregnancy reaching 27 weeks by the time the decision is reached?
More fundamentally, this case prompts critical inquiries into upholding the reproductive autonomy and rights of pregnant persons under Article 21 of the Indian Constitution. The persistent undertone of “control” throughout the process and judgment undermines their agency and choices. Irrespective of the progressive and liberal nature of a law, its worth is limited if it fails to honour the reproductive autonomy and choices of those in need.
We began with a step forward in the legal landscape half a century ago and made some progress through subsequent amendments. Does the aftermath of this case threaten to erase the modest advancements achieved to date? Undoubtedly, the Supreme Court’s decision in this case represents a setback for reproductive rights in India. It also serves as a clarion call for proponents of laws and policies that champion the reproductive autonomy and choices of all pregnant persons, regardless of their circumstances, to persist in their efforts and simultaneously appeal to the Supreme Court for a review of its ruling.