For her first termination of pregnancy, Aishwarya* had gone to a gynaecologist, but was flat out denied by the doctor, who said she would not perform the abortion. The doctor then referred her to a colleague, who turned out to be an IVF specialist. The second doctor, too, denied her the abortion, and instead asked her to carry the pregnancy to term and have a baby. Aishwarya was seven weeks pregnant at the time, but the IVF specialist refused to give her a medical kit, and stated that she was too far along, and asked her to come in for a prohibitively expensive surgery to abort.
“I walked out of the hospital, went to my neighbourhood pharmacy, asked for the kit, and I self-medicated,” Aishwarya says.
India is one of the few countries in the world that allows a woman above 18 years of age to legally abort or terminate her pregnancy -- for up to 20 weeks of gestation -- through a registered medical practitioner. The Medical Termination of Pregnancy Act (Amendment), 2002, which provides the legal framework for this, also lays down certain circumstances that qualify an abortion as legal: (a) when the pregnancy involves a risk to the life of the foetus, (b) when the continuation of pregnancy is a risk to the pregnant woman or causes grave injury to her physical or mental health, (c) when the pregnancy is caused due to rape, and (d) when it is caused due to the failure of contraceptives used by a married woman.
However, despite the legal approval to terminate a pregnancy, India continues to witness millions of incidents of unsafe abortions.
Unsafe abortions are the third leading cause of maternal mortality in India. According to the Lancet, an estimated 15·6 million abortions occurred in India in 2015, of which only 3·4 million abortions were in health facilities, 11·5 million were medication outside of health facilities, and 0·8 million (5%) abortions were done outside of health facilities using methods other than medication abortion. The study says that 0.8% of abortions were not medical or surgical and were probably by unsafe methods. According to a study by the Guttmacher Institute, International Institute of Population Sciences and Population Council, 26–41% of all pregnancies end in an abortion in India.
Indian law doesn’t allow a woman to self-medicate to terminate a pregnancy, but when women like Aishwarya turn to self-medication, they’re forced to break the law.
The World Health Organisation (WHO) defines unsafe abortion as a procedure for terminating a pregnancy performed by persons lacking the necessary skills or in an environment that does not conform with minimal medical standards, or both. It identifies and recommends two safe methods of abortion:
However, if misoprostol, which may have side effects, is self-administrated or skilled health-care providers use outdated procedures, such as sharp curettage for dilation and curettage (D&C), then, it is considered an unsafe abortion.
WHO guidelines also point out that when women do not have access to sexual and reproductive health services and information, including contraception and safe abortion care, they are at risk of unsafe abortion, which can, in turn, put their lives and well-being at risk.
There is a battery of reasons that indicate why a developing country like India continues to see unsafe abortions, such as
The ethical objection
Soumya* experienced mixed feelings when she learned that she was expecting her second child. Soumya knew she was not ready for it. Residing in the Middle East, where laws do not allow women to carry out abortions, Soumya flew down to her native in Kerala. Her hopes to terminate her second pregnancy were almost dashed when the gynaecologist refused to do so.
“I have a boisterous son. He was one-year-old when I was pregnant with the second child. Being a working woman, it would have been difficult for me then to raise another child. I explained my situation to her multiple times, but, in vain. It took me almost 30 minutes to convince the gynaecologist that I wanted to terminate my unintended and unwanted pregnancy, even though the foetus was healthy. Instead of counselling, she chided me for not using protection when I had sex,” Soumya recounts the moment when the doctor almost refused to abort her 10-week-old foetus.
“Finally, I think my child did the convincing part when he started getting rough and tumble in the consulting room. That served as a proof and she finally took pity on me and agreed to do the abortion,” she says.
Like Aishwarya and Soumya, there are several instances where a gynaecologist or an obstetrician has refused or opted out of performing an abortion. While some doctors are merely unwilling to take the risk, others have conscientious objections to abortions.
For Dr Beena Sam Mathews, a gynaecologist from Kerala, aborting a healthy child is tantamount to “a sin against god.”
“I believe that every child who is conceived in a woman’s womb has the right to live and hence I don’t have the right to kill it. The child inside the womb is a life, a person and cannot speak for itself. Hence, a child should not be murdered in the womb. As a gynaecologist, I should understand that only god can take and give a life,” Dr Beena told TNM.
She insists on educating adolescents and young women at an early age, rather than “letting them kill a child and haunt them for the rest of their life.” She also doles out alternatives to the unwed women who approach her for an abortion.
“I counsel the family to stand with her and help her through the pregnancy. Alternatively, if the woman does not want to keep the baby, give it for adoption through an adoption agency; there are several couples waiting in line to adopt children. I will also try to get the woman married to the person who got her pregnant. Yet, if there are some people who are still adamant and want to abort, I refer them to a medical college,” she says.
In instances such as these, women are subjected to more mental agony, which in a way, violates one of the criteria cited in the MTP Act for an abortion -- “when the continuation of pregnancy causes grave injury to her physical or mental health.”
And Dr S Shobha of Institute of Obstetrics and Gynaecology (IOG), Egmore, Chennai, agrees. “When the unborn baby and the mother do not have any health complications yet she wants to terminate her unwanted or unintended pregnancy, which is causing her mental and emotional trauma, it is an indication of MTP Act. In such cases, we first counsel the woman and yet, if she is not able to handle it, continuing the pregnancy is not good for the mother. The psychological component of the mother has to be factored in. If she is not emotionally comfortable, it is an unwanted pregnancy and can be terminated.”
The problem with the law
Often, the legalities involved in the termination of a pregnancy make the provider hesitant to abort. For example, Section 315 of the Indian Penal Code cites an act done with intent to prevent child being born alive. It states that whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive which is not for the purpose of saving the woman’s life, one can be imprisoned and/or fined.
So, is Section 315 of the IPC in conflict with the MTP Act? According to Bengaluru-based senior advocate Lakshmy Iyengar, the two laws are not conflicting if it can be shown that the development of the foetus is harmful and there is no scope for its sustenance, or the life of the mother is in danger. Hence, based on medical reports, if the court is convinced, it will permit the abortion.
“Self-termination, on the other hand, can come under the purview of the section. A lot of people carry out an abortion without consulting any professional; and hence, there is nobody to object to it and report it. Many get away with it. That's why many medical practitioners are extra cautious when dealing with abortion cases," she says.
Yet another legislation that often muddles with the judgement of the doctors is the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, a law introduced to stop female feticides and arrest the declining sex ratio in India. “But this is a perceived conflict,” says Vinoj Manning, Executive Director of Ipas Development Foundation, which works towards sexual and reproductive rights, and especially the right to safe abortion and contraceptive services.
“The act is to prevent the communication of the sex of the foetus to the parents, due to the gender imbalance in India. It is not written anywhere that the abortion has to be prevented with this act. Normally, the sex of the foetus can be determined through an ultrasound after 12 weeks. Hence, a lot of doctors suspect that any second-trimester abortion is because of sex selection. But no more than 9% of all abortions are for sex selection,” he explains.
Similarly, when a pregnant woman approaches a gynaecologist for abortion with a conflicting opinion from her husband, she is referred to a medico-legal professional. According to Dr Palaniappan N, a Tamil Nadu-based obstetrician, a married, pregnant woman does not need the consent of her husband; she has the right to abort the foetus if it is within the medical term.
“But if it is an issue between the husband and the wife and she informs me about this, I will be cautious and would not now carry out the abortion. If they do not come to a mutual agreement, I will ask them to take a legal opinion and refer them to a medico-legal consultant. In such a case, in the report, I note it as abortion not refused but deferred, because the wife is the one nurturing the child for nine months. The medical lawyer will give an opinion and issue a certificate to go ahead with the abortion,” he says.
When stigma forces women to take unsafe route
It is not just the medical provider’s moral dilemma that restricts a pregnant woman from seeking and obtaining abortion. The stigma and shame associated with abortion - due to religious beliefs, cultural values and economic status - lead several unwed women, especially those in the early 20s, to seek unsafe abortion services outside health facilities even if they may want to take the safer option. As a result, many are left traumatised.
When TNM tried contacting women who have had an unsafe abortion, many declined to recall the incident, for the fear of being triggered.
In November 2012, Laya*, who was 20 years old at the time and pursuing her bachelor’s degree, broke up with her partner. She soon realised that she missed her period.
“My boyfriend and I had unprotected sex because he did not like wearing condoms and I was scared if pills would work,” Laya tells TNM. “I travelled to Bengaluru just to buy a pregnancy test stick because I did not want anyone to find out. I come from a conservative family and my parents would not even let me talk to boys. My father knows so many people in and around the place I lived in, and hence, I was scared that they would find out.”
When she learnt that she was pregnant, she got scared and consulted with a person whom she knew well. “I preferred going to anybody other than a doctor. I told my friend that it was for another friend. She then told me about a man in Udupi who had home remedies for abortion. I was about five weeks pregnant then and I went to him. He gave me a bitter drink, although he did not warn me about its side effects or dangers. All he said was that I would get my period,” she recalls.
Laya returned to the hostel and went to sleep as she was feeling weak. “I woke up when one of my roommates started screaming. When I switched on the light, my bedsheet was covered in blood. As I did not want to go to a hospital in the place I was living, my friends took me to a hospital in Mangaluru. I was in the ICU for two days and one of my friends pretended to be my mother in the Middle East and spoke to the doctor. I informed my college that I was having a surgery and hence was going home for couple of months; but I stayed back at the hostel. My roommate made sure that the warden did not enter the room. If my parents find out, they would probably never speak to me again,” she recalls.
When cost and access lead to unsafe abortion
Ipas Executive Director Vinoj points out that a large number of abortions do not happen within medical centres because they lack the facilities to do so, thus forcing women to seek and obtain abortion services outside the legal boundary.
“The private sector has more gynaecologists than the rural sectors. Unfortunately, many government services are not adequately staffed or equipped to provide services. Besides, only gynaecologists can -- by default and by profession -- provide abortion services. An MBBS doctor, on the other hand, needs to take a 12-day training programme to do so, thereby limiting the number of providers. Medical members like nurses have the potential to be providers of abortion services, if they undergo certain training. Sadly, our current law does not provide that, which is a gap,” he says.
Cost also plays a defining factor in safe abortion, especially for rural women.
“Public sectors, including Primary Health Centres, do not have adequately trained doctors, who can provide abortion services, especially in rural areas. And so, if a woman from rural area wants to go to a private sector hospital, she has to travel further and bear the additional costs, including the provider fee and the travel cost,” he says.
Abortion at government facilities are supposed to be free; however, there are rare cases of under-the-table payment, says Vinoj.
Giving a ballpark figure of the estimated cost to carry out an abortion in India, he explains, “The new methods of abortion can cost a woman, on an average, a minimum of Rs 3,000. If the abortion is through medical methods, the drug is available from Rs 400 to Rs 500; add to this, the consultation fee, which can be an expensive affair depending on the doctor.
Lack of awareness
Goldy Jain, a second-year medical student of Grant Medical College and Sir JJ Group of Hospitals, Mumbai, tells TNM that the MBBS curriculum does not extensively talk about abortion. “The third-year curriculum includes a chapter on the abortion laws; but it does not cover the ethics component,” she says.
She recalls attending a workshop on abortion recently. “It was a workshop for the post-graduate students, but other students could voluntarily sign-up for it. The guest speakers, a gynaecologist, explained about safe and unsafe abortions, new methods of abortion, laws and the social stigma about abortion. However, the information was crammed into one hour, and wasn’t informative,” Goldy says.
Vinoj notes that despite abortion being legal for 47 years in India, only a handful of doctors know that abortions are legal, and even fewer women know that it is legal for up to 20 weeks. He says that poor women and unwed women are especially prone to this problem, due to lack of awareness about abortion and its legalities.
“They delay in identifying the pregnancy and further delay in making the decision while trying to find the means and methods to terminate the pregnancy and talking to family. By then, abortion gets delayed and go beyond 12 weeks,” he says.
He also notes that providers lack a thorough knowledge of the law. “Most often, doctors do not interpret the full extent of what the law allows. They go by their own biases and unwillingness to take the risk. Hence, there is an urgent need to educate and sensitise both the abortion providers as well as the women and men,” he says.
Why the law needs to acknowledge women’s agency
The rights of an unborn child and a woman’s right to life continue to be a highly debated topic, especially when it comes to abortion. But on September 21, 2016, while hearing a suo motu PIL on medical facilities for women prisoners, the Bombay High Court observed, ‘Women in different situations have to go for termination of pregnancy. She may be a working woman or homemaker or she may be a prisoner, however, they all form one common category that they are pregnant women. They all have the same rights in relation to termination of pregnancy.”
The bench passed a judgement factoring in the rights of a pregnant woman to decide if she wants to terminate her pregnancy or not. “A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma, which would be deleterious to her mental health,” the court noted.
Similarly, the 2017 Right to Privacy judgement of the Supreme Court pointed out that the recognition of the fundamental right to privacy may affect issues related to bodily autonomy, including abortion. Stating that “concerns of privacy arise when the State seeks to intrude into the body of subject,” Justice Jasti Chelameswar noted that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”
Vinoj Manning echoes a similar view. “The biggest lacuna in India’s MTP Act is that it is based on a doctor’s opinion and the four indicators. It does not make abortion about the rights of a woman. If a woman feels her situation has changed, and is suddenly faced with an unintended or unwanted pregnancy, from point of view of women’s right and her bodily anatomy, that is a lacuna. Ideally, at least for the first trimester, MTP Act should make abortion a woman’s choice and not based on doctor’s opinion.
Suyash Khubchandani of the NGO India Safe Abortion Youth Advocates (ISAY) observes that with more pregnant women approaching the Supreme Court, seeking an abortion beyond the 20-week gestational legal mark, it is becoming a standard rule and a needs-based approach.
“It should not be a needs-based approach. It has to be a sensitive and women’s rights-based approach. Women should get an abortion because they want to. The MTP Act should be amended, especially at a time when women have been fighting for their rights in every sector,” he says.
The way forward
“Normalise abortion to address stigma and other dilemmas,” Vinoj opines.
The draft of the 2014 MTP Act Amendment Bill, which is yet to be passed, proposes to include an array of recommendations, thereby expanding the legal boundary to bring down the number of unsafe abortions in India.
It recommends increasing the gestation limit to 24 weeks; extending the condition of contraception failure to unwed women; allowing AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy) providers, nurses and auxiliary nurse midwives (ANMs) to provide early abortion services after training; and reduce the requirement of the opinion of two health care providers for second-trimester pregnancies to one health care provider. This, according to Vinoj, helps decentralise safe abortion care facilities and make it more accessible.
“Amendment in the MTP Act and a comprehensive awareness on the abortion problems among women and community are some of the ways forward,” notes Vinoj.
According to a handbook published by the Office of the United Nations High Commissioner for Human Rights (OHCHR), a woman’s right to life entitles her to access basic reproductive health services.
When safe abortion services are not easily accessible or are of poor quality, and abortion laws are restrictive, women, like Aishwarya and Laya, have to resort to self-induced abortion or turn to unskilled providers to terminate their pregnancies, thereby being forced to face potential grave consequences to their health and well-being.
Aishwarya was forced to self-medicate, and when she went in for her second termination, she was able to get one, but not without being stigmatised for the choice she was making.
“There is this underlying presumption that all pregnancies end in children, and all women keep all their pregnancies,” she says.
(With inputs from Theja Ram)
*names changed