Indian Abortion Law: A bemusing mirage leading to a sham

By Sreyashi Mazumdar

Cracking down upon the parochial understanding of sexuality and conjugal intercourse, India might have rolled out an exclusive law to legalize abortion, however the furore which was unleashed over a 14-year-old rape victim striving hard to acquire a consent to get aborted (who was at her 25th week of pregnancy) unveils the dissemblance put up by the law.

A mirage often bemuses one owing to the sham it puts forth, it cohabits both existence and non-existence. It feigns the possibility of a thing being real but when looked into closely, the possibility vanishes, leaving behind a void.

Toeing on a similar line of thought, Indian abortion law is nothing less than a mirage. While looking into the nitty-gritty of the law, one might get hold of the facade borne by the same.

Tenets of the Medical Termination of the Pregnancy Act 1971 (Act no: 34 of 1971)

-In order to have an abortion, one requires to get it done by a registered medical practitioner.

(Definition of a medical practitioner- Cl.(h) of Sec. 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 gynaecology and obstetrics as may be prescribed by rules made under this Act. 3.)

• A pregnancy can be terminated at the behest of a medical practitioner.

• A woman can take to abortion if the length of the pregnancy period doesn't exceed 12 weeks (and if permitted by the medical practitioner under concern).

However, a woman can also have abortion considering the fact that the length of pregnancy doesn't exceed 20 weeks. Nevertheless, under such a circumstance, the woman under consideration requires to garner a permit from two medical practitioners.

A medical practitioner permits an abortion on conditions as follow

• If the pregnancy is caused by rape
• If the new born child beholds the possibility of suffering from mental or physical abnormalities.
• If the woman (married woman in this case) has been subjected to a grave physical condition owing to intakes of contraceptive pills.

– In case the individual under consideration is a minor or above 18 and is a lunatic, a guardian's permit is compulsory for the same.

The aforementioned sections of the MTP Act inevitably ends up breaking the bubble; a bubble which gives one the feeling of being a part of a country which is quite progressive and affirms a woman's right to abortion.

Bubble Buster

"Unfortunately, despite having a law on abortion, a woman cannot avail the same without the consent of the provider. An 18 year can get an abortion, even if she is unmarried, under the clause of rape and mental health," said Dr. Shalini Desai, Assistant Coordinator at Asia Safe Abortion Partnership.

She further fleshes out the conditions under which abortion becomes hazardous for the woman undergoing the same, "Gestational age, a number of previous children, nutritional status, anaemia, previous birth history, caesarean sections etc are conditions under which a woman shouldn't get an abortion done."

The sham does not end here. Adhering to the clauses under the POSCO act 2012, in case, a minor ends up having a conjugal intercourse with her boyfriend, then the entire act falls under the ambit of rape. " Abortion becomes all the more difficult for a minor owing to the introduction of the POSCO Act. Therefore, a girl under such a circumstance is left with no other choice but to resort to illegal remedies in case informing her parents doesn't befit her," laments Dr. Desai.

Further, medical practitioners require to behold a rational perspective, they need to get sensitized on varied levels, especially when a woman opting for an abortion is unmarried. Sensitisation becomes all the more important owing to the decision-making power the medical practitioners wield in abortion cases. According to a report in idiva.com, a woman despite being above 18 was denied an abortion owing to her marital status. "We can do a pregnancy test here if you want, but if you want an abortion, then please don't come here. Go elsewhere," reported a nurse at the medical hospital when the aforementioned woman wanted to get an abortion.

Distressful cases

India, despite sanctioning abortion, is flooded with abortion death cases owing to the skewed nature of the MTP Act. The amorphousness of the act has ended up unleashing a string of death cases. Besides this, the act also ends up making the entire process of abortion tenuous and stressful.

For instance, the 14-year-old Ahmedabad girl who had to take to the apex court in order to seek a permit for abortion as she was 24 weeks pregnant had to wade through a series of legal procedures- the girl was refused a legal permit for abortion by the Gujarat High Court. According to media reports, she was allegedly raped by her doctor when she visited him for a check up. She was made to gobble a sedative after which she was allegedly raped. Despite being rendered a legal permit, the onus was on the doctors- a committee of 5 doctors officiated by the court- to decide upon the matter.

According to an Indian Express report, a Mumbai couple Harsh and Niketa Mehta failed to garner a legal grant for an abortion in the year 2008. The woman under consideration was carrying a 26-year-old foetus owing to which they had to resort to legal remedies.

The court refuted their plea on the condition that the medical practitioners who were looking into the case had categorically denied the fact that the new born child would suffer from serious handicaps( the condition owing to which the couple wanted to have an abortion).

However, Niketa later on had a miscarriage and ran into a dismal end.

Awaited antidotes to resolve the severity

Looking into the austerity of the situation, the Indian government should brace themselves up for a better law to put an end to the murky status of abortion. Despite the government coming up with a draft MTP(Amendment) Bill 2014, the challenges of abortion do not end there. The bill renders the period of 20-24 weeks as perfect for abortion. Other than that, the bill does not improve upon the obliquity of the MTP act.

"The media must don an active role in order to educate people from across the board on the legalities of abortion and the methods that one should take to in order to undergo the same," said Dr. Shalini Desai.

"Studies show that less than 30 per cent of the Indian women are aware of the fact that abortion is legal in India. More awareness in needed, combined with safe abortion services easily accessible by women," expounded Dr Manisha Gupte, pondering upon the possible remedies to put an end to the abortion deaths.

Musing the murky situation, one needs to figure out the counter-poisons to fix the labyrinth. The government needs to stand on its feet to combat the problem, along with that, sensitization and sex education are the two important elements which the Indians need to get apprised of. Further, an abortion has lesser to do with the body and more to do with liberty, one's right to life and the way one chooses to live.