A flawed right to safe abortion in India: What more can we do?

Interview

Interview with Dr. Suchitra Dalvie by Shalini Yog Shah

Social Health Activists (ASHA) are community health workers within the National Rural Health Mission (NRHM) which brings primary health care, family planning, maternal and child health services to rural communities.

Thousands of deaths in India are reported ever year due to unsafe abortion. Of all maternal deaths reported in the country, unsafe abortion contributes to a very high maternal mortality rate of 13 per cent. However, fatalities due to it have further worsened during the continued COVID-19 pandemic, exposing the fragilities of our public health sector. Sexual and reproductive healthcare has been compromised, in particular for the poor and marginalised. How can public services be improved and held accountable to provide accessible and safe abortion care? Do our laws measure up in favour of women’s bodily autonomy, integrity and privacy? Does the proposed Medical Termination of Pregnancy (Amendment) Bill speak the language of rights?

We speak to Dr. Suchitra Dalvie, a women’s health expert engaged with safe abortion advocacy groups and social movements worldwide.

Dr. Dalvie is a practising gynecologist and co-founder and coordinator of the Asia Safe Abortion Partnership, a safe abortion rights advocacy movement having members in over 23 countries across South Asia, South-East Asia, South-West Asia as well as in the Asia Oceania region. Her works include engaging with healthcare providers, young people, policymakers and media to create visibility and a greater understanding of safe abortion as a right.

Dr. Suchitra Dalvie
Dr. Suchitra Dalvie, a women’s health expert engaged with safe abortion advocacy groups and social movements worldwide.


Shalini Yog Shah : What are the current laws governing abortion in India?

Dr. Suchitra Dalvie Most people are aware of the Medical Termination of Pregnancy (MTP) Act, 1971. As per this Act, qualified healthcare professionals are allowed to terminate a pregnancy up to 20 weeks under a certain set of conditions. These include a) the risk to mental and physical health; b) a pregnancy, which is caused as a result of rape; c) a pregnancy in which the foetus is known to have a very serious impairment; and d) a pregnancy, which is caused because the woman and her husband were using a method of contraception that failed. Of course any pregnancy can be terminated at any time regardless of the gestation if the doctor believes that the woman's life is at risk if she continues the pregnancy.

However, most people are not aware that we also have the Indian Penal Code (IPC), which was basically the British Penal Code drafted in 1860 but was absorbed unchanged when India became Independent in 1947. Unfortunately, as one can imagine, that antiquated law reflects the moralities and social norms of that era and hence criminalises miscarriage. Some of you may be aware of a similar problem, which took place due to the criminalisation of gay intercourse as a result of which the Section 377 of the IPC needed to be repealed. So, the IPC criminalises miscarriage and hence we need the MTP Act to protect the doctors from criminal charges when they provide a termination of pregnancy. The problem with this law is that it emerged as a result of demographic concerns as well as issues of very high maternal mortality caused due to septic abortions. So, as I explained earlier, the law is meant to protect the doctor from criminal charges. It is not a rights-based law.

Shalini Yog Shah : Despite abortion being legal, why is there a high estimated prevalence of unsafe abortions? What are the socio-cultural and systemic factors that impede women’s autonomy and control over safe abortion? How do we strengthen access to safe abortion services?

Dr. Suchitra Dalvie The social, cultural, and patriarchal norms in India mean that for women, marriage is supposed to be compulsory and an important role, and within that the elevation of motherhood is regarded as the ultimate contribution a woman can make. As a result of this, any woman who chooses not to be a mother is seen as someone who is to be vilified or punished, whether it is a social punishment or a legal punishment and this is why there is a lot of underlying stigma against abortion.

The best way to strengthen access to safe abortion services is to ensure that information is available to everyone publicly and without any stigma.

 

It is also important to recognise that patriarchy has attempted to control women's sexuality for centuries. One of the best ways to do this is by giving very high social punishments to women who choose to have sex before or beyond a marriage resulting in a sort of silence and stigma around the issue of abortion. Although abortion has been legal in India since 1971, there is very little public information, little social conversation (around it) because most women believe that it is either a sin or that they are doing something illegal or criminal. As one can imagine, this lack of information and conversation leads to women seeking out abortions from places or persons that are not qualified resulting in a large number of unsafe abortions.

Even now unsafe abortions contribute to 13 per cent of maternal mortality. This is an aggregate number for the entire country, so it is very possible that there are many districts in some states, which have very poor access to healthcare services where unsafe abortions may be contributing to as much as 50 per cent of maternal mortality. Hence, it continues to be a very important public health issue as well as a women's rights issue.

The best way to strengthen access to safe abortion services is to ensure that information is available to everyone publicly and without any stigma. It is important to ensure that all the public healthcare facilities provide safe abortion as a ‘range of choice’ made available to women in a non-judgmental, sensitive and dignified way ensuring quality of care and non-coercion of post abortion contraception.

Unfortunately, the reality currently is that the public sector hospitals or facilities are exactly the opposite. They tend to shame women, add to the stigma and treat them in an undignified way. Some of them don't provide any pain relief at the time of abortion, as a kind of punishment to the women. They force them to have contraception after having an abortion. Women are aware of this and hence tend to stay away from the public sector (hospitals). They thus prefer the private sector because it offers safety, confidentiality, speed of services and no coercion of post-abortion contraception. The only problem with this is that the private sector of course is meant for profit and hence there is potential for it to be exploitative. Besides, there is also not enough accountability of the private sector to the community. (In India, the government hospitals are seen to be more accountable to the public or community)

The public sector, which is or ought to be accountable to the people at large is not fulfilling its roles and hence we find that there is a great skew towards safe abortion services provided by the private sector.

Shalini Yog Shah : Why the new bill? How does it measure up to progress autonomy, bodily integrity, and privacy of the pregnant person?

Dr. Suchitra Dalvie The MTP (Amendment) Bill, 2020 that is being proposed and has already been passed by the Lok Sabha, the Lower House of Parliament (awaiting being passed by Rajya Sabha, the Upper House) proposes a few changes which are progressive. For instance, it removes the word ‘married woman’ and states instead the failure of contraception used by the ‘woman and her partner’, which is a step forward. It does propose increasing the gestational limit from 20 weeks to 24 weeks. 

The law is also not making progress on speaking about women’s autonomy and agency and their capacity to take decisions about their own bodies....

However, in most other ways in terms of the spirit of a rights based approach, the proposed amendment does not measure up.  It is still created for protecting the doctor from criminalisation. In fact, it is increasing the number of barriers by adding to the number of ‘layers of people’ the woman needs to approach in order to get the “permission” or approval to have an abortion.

The proposal is to set up medical boards at the state level for those abortions, which are to be carried out beyond 24 weeks (for fetal malformation). In a sense, it is being done from a eugenic perspective, which is disturbing. Any woman should be allowed to terminate an unwanted pregnancy, no matter why it is unwanted. By that logic, we argue for the women's mental health and her quality of life being impaired if she is forced to give birth to a foetus with serious disabilities as that may require long-term care and that would affect perhaps her education, potential employment earning, independence and so on. However, the way the Act is worded, it is more so as to avoid the birth of a baby with defects.

The law is also not making progress on speaking about women’s autonomy and agency and their capacity to take decisions about their own bodies despite the fact that the Bombay high court as well as the 9-judge bench having clearly opined on the Aadhar issue (right to privacy as a fundamental issue), clearly and unequivocally, on more than one occasion, that all citizens of India, including women, have the right to decide what happens with their bodies. This includes the right to choose a sexual partner as well as the right to decide whether or not to continue their pregnancy which is growing inside their bodies. Despite these very bold and liberal statements from the highest courts of the country, this law does not actually match up to that in spirit.

Shalini Yog Shah : How do we situate sexual minority rights vis a vis abortion in India?

Dr. Suchitra Dalvie The situation of sexual minority rights vis a vis abortion in India is again a difficult issue. For example, the law even now speaks of a ‘pregnant woman’ and not a pregnant person. There is no special provision for pregnant persons who are vulnerable because of their situation such as poverty, caste, living with disabilities, HIV positive, sex workers and young girls in remand homes. None of these vulnerable populations have been accounted for or specifically addressed within any of the abortion laws, policies and programmes in the country.

Shalini Yog Shah : How has the pandemic affected the larger sexual and reproductive health and rights (SRHR) and access to abortion?

Dr. Suchitra Dalvie The SRHR situation and access to abortion has been extremely difficult even before the pandemic. As I explained earlier, public health services do not really address the needs of the vulnerable people or the vast majority of the people in the community. The way the pandemic has affected SRHR and access to abortion is that it has made it even more difficult.

The reason why we hear or talk so much about it is that the middle class and the upper middle class are now facing those exact barriers to access that the poorer and the most vulnerable people in our country have been facing for decades. It is because this population is not used to having to struggle and face the challenges in terms of public transport, denials, lack of facilities, lack of medication, or lack of access to service providers and is speaking out.

Suddenly, we are seeing a whole lot of talk, articles and conversations around the pandemic and its impact on SRHR and safe abortion.  But the reality is that even 20 years ago a poor woman of lower caste, living in a faraway village would not have been able to easily access any efficient method of contraception. Similarly, she might not be able to find anyone to support her if she was facing intimate partner violence or was HIV positive. And it is quite likely that she would have been forced to continue pregnancies, which she didn't want and faced the same kind of access issues that the better off people in society are only now realising exist.

Shalini Yog Shah : How could the government have ensured that contraception/ safe abortion access for women was available during the lockdown? What can be done if crisis situations like these arise again?

Dr. Suchitra Dalvie The lockdown, which was abruptly declared, could have taken into account that these are ongoing needs, which are time sensitive. Specifically, with a lot of the migrant population coming back to the villages and changing the cohabitation patterns with their spouses. In addition, the increase in intimate partner violence or domestic violence has definitely resulted in an increase in unwanted pregnancies and unplanned pregnancies.

The fact that before the pandemic, for example, women who were able to freely go to the market or on their way to pick up their children from school were able to access a clinic or purchase pills, were unable to do so now.

Although the government did declare that all pregnancy related services would be considered emergency services and should be continued even during the lockdown, and the Federation of Obstetric and Gynecological Societies of India (FOGSI) also having declared the same, it was still very difficult in practice for women to actually reach these facilities because of lack of public transport.

There was also the issue of confidentiality and privacy. The fact that before the pandemic, for example, women who were able to freely go to the market or on their way to pick up their children from school were able to access a clinic or purchase pills, were unable to do so now.  Now they had no reason to leave the house and the men or the people of the house acted as gatekeepers. Very often the women were not able to tell them what was needed and have hence suffered from lack of access.

One of the steps that the government has already taken in this regard is to integrate telemedicine into the system of clinical practice. Telemedicine is the practice of medicine using technology to deliver care at a distance. However, telemedicine protocol currently does not specifically include medical abortion pills and it would be ideal if it could do so. It has the potential to greatly increase the outreach of medical abortion pills access to very large number of people in the country. As we have been told, India has more mobile phones than toilets, and although a lot of these phones are not owned by the women but by the men in the family, these still have immense potential to increase access to information and services of medical abortion.

In my opinion, if a crisis situation arises again, it is most important to start working on strengthening the public health sector services improving women's access to all kinds of health sector services whether it is through empowerment of men and women, through improved capacity building and networking of the community health workers or through appropriate policies, maybe with the panchayati raj institutions, for improving the policies and programmes at the village level.

We must definitely utilise technology such as telemedicine because as we are all aware that this not the first pandemic and it is not likely to be the last. So, it is probably important for us to start putting into place measures, which will help protect particularly those who are most vulnerable, those most in need of services in crises times.