Right to Abort: Beyond Legality

While the recent Supreme Court judgement is laudable indeed, lot of ground will need to be covered before it actually benefits the targeted women. — Dr. Jaya Kakkar

A recent Supreme Court judgment has brought single and unmarried women as well as victims of marital rape within the ambit of Medical Termination of Pregnancy (MTP) Act of 1971 thereby ensuring for them safe and legal abortion care up to 24 weeks of pregnancy. Of course there will be a need to ensure that these women can carries this right in actual practice. The court said that the rights of reproductive autonomy, dignity, and privacy necessitate that on unmarried women too must enjoy this right to choose. Similarly, though marital rape is not-yet-recognised as on offence under the Indian Penal Code, at least the Court has said that sexual assault by a men on his wife can take the form of a rape. Our Supreme Court has treaded on a more progressive path than courts in United states where regressive laws recently were passed relating to abortion. There the constitutional right to abortion was overturned by Supreme Court in June this year. In India, on the other hand, the court has recognized that the right to dignity, equality, privacy, and a dignified life together required reinterpretation of the contours of the MTP Act for all women who must be granted authority to take reproductive decisions, including the decision to terminate pregnancy. 

To be sure, Indian women have had the legal right to have an abortion since 1971. The law was updated in 2021 in background of newer developments in science. Yet, due to patriarchical mindset and social stigma women especially unmarried and single – face great hurdles in actually exercising their right to abort. Even toady 60-70% of abortions take place outside of the healthcare infrastructure. It is estimated that out of nearly 16 million abortions performed each year, up to 12 million are carried out outside a healthcare facility, most of which are done nonsurgically through pills. These medication are usually obtained by men. Far too many women lack access to safe and direct healthcare advice and support. Even 8-10% of surgeries are performed by unqualified personnel. No wonder, unsafe and incomplete abortions account for about 8% of maternal deaths. When our primary healthcare system itself is in a poor shape, it comes as no surprise that there is a paucity of reproductive health services, more so in non urban areas.  

Thus recognition of the Court of a woman’s decisional autonomy to exercise intimate personal choices as a self governing individual is an important milestone in improving the status of women in a country – a country where in 2021 a massive 4,28,178 lakh crimes against women were recorded by National Crime Records Bureau. The actual figure may be much larger. But this is just about.

All Indian women need access to safe abortion performed by trained personnel. They also need access to information, guidance, and support on non surgical and surgical abortion. One step could by to extend existing family planning services to abortions. But it is not merely a medical issue. Improving awareness will help reduce social stigma around abortion. Putting law in place is a necessary condition but not sufficient to ensure its actual implementation. 

The Supreme Court of India has demonstrated in recent times what women’s autonomy should mean in practice. Thus it permitted a woman to terminate her pregnancy when her live in relationship broke down. Now the latest ruling has come in face of the court recognition that the law must evolve with the times. Thus women who are sexually active – married or otherwise – have the right to abortion if they so please. Women must have the discretion to decide about contraception, number of children, or abortion without being influenced by social norms and values. The United States, interestingly, remains largely tilted against abortion. But many other countries often allow MTP decisions on grounds of women’s mental and physical stale, and not on normative value system.

The Court has also admitted to the possibility of intimate partner violence and the possibility of non consensual sex in a consensual relationship, thereby paving the way for understanding sexual violence further in a misogynistic culture that condones male coercion, presumably to safeguard the institution of marriage. Under the original Indian Penal Code (enacted in 1860) it was prescribed that sexual intercourse by a man with his own wife not being under fifteen years of age, is not rape. Women, who have struggled all this while to bring husbands who sexually assault them to justice as marital rape, now feel vindicated. However, currently marital rape is excluded from the ambit of the definition of rape under exception 2 to section 375 of the IPC. Since Supreme Court is hearing to remove the same presently, as of now marital rape is not criminalized, not yet at least. Human rights activists suggest that if a person (woman) is guaranteed equably, autonomy, and dignity under Indian constitution (Article 14 and 21) then marital rape must be termed as criminal offence. Earlier Justice Verma Committee has recommended that a marital relationship could not be allowed as a defence against sexual violation.

Coming back to the ‘right to abort’ judgement, the judgement has stated that the ambit of reproductive rights is not restricted to the right of women to have or not have children. Reproductive rights, indeed, include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, their number, the right to access safe and legal abortion, and the right to reproductive healthcare. But contrast this admittedly admirable, but normative, statement with stark realities. By government’s own admission (May 2021), almost 70% of obstetricians and gynecologists posts remain vacant in India. A majority (nearly 55%) of abortions are performed in relatively expensive private sector facilities, making them in accessible to poor. Worldwide nearly half of all abortions are performed in unsafe conditions, making them a leading cause of maternal death. As per a 2015 Lancet report in India annually about 16 million abortions take place. This means that on account of this factor alone 7-8 million women face health safety hazards. 

Takeaway is clear. Legal change is definitely the needed first step. But we need to travel much beyond. We need to build capacity to ensure better quality of care so that first the abortion services become accessible on demand, and free for the most disadvantaged. Simultaneously there is the need to spread awareness and ensure a change in mindset of the male dominated Indian society so that it becomes objective, scientific, and compassionate towards a woman’s right, unconstrained by her marital, social, or economic status.  

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