Abortion is legal in India with medical access for all

The Centre for Justice, Law and Society at Jindal Global Law School, in collaboration with Ipas Development Foundation, has developed “Access to Safe and Legal Abortion: A Handbook on Abortion Laws for Healthcare Service Providers in India”.

The Handbook was unveiled by Dr. Jaydeep Tank, President Elect, Federation of Obstetric & Gynaecological Societies of India (FOGSI) during a virtual launch.

The Handbook was conceptualised in light of confusion and lack of awareness surrounding the legal framework on abortions and the consequent chilling effect on access to safe and legal abortions.

Dr. Jaydeep Tank noted that “The overturning of Roe v Wade by the United States Supreme Court, even as a medical practitioner in India, is extremely disappointing because it gives an indication of where things are headed. In this backdrop, it is pertinent to clarify the legal status of abortions as the Medical Termination of Pregnancy Act, 1971 (MTP) is clear in its intent of legalising abortions under specific circumstances.” He further noted that it is important to comprehend the reasons for reluctance on the part of the service providers.

The Handbook, through an accessible interactive form, clarifies that abortions performed in line with the Medical Termination of Pregnancy Act, 1971 (MTP Act) are legal and the service provider will not face any criminal consequences for terminating such a pregnancy. The handbook also explains that the MTP Act allows access to abortion services for women up to a certain gestational age and as per certain conditions:

  1. If the gestational period is within twenty weeks, the opinion of one medical practitioner is required to terminate the pregnancy.
  2. If the gestational period has exceeded twenty weeks but is less than twenty-four weeks, the opinion of two practitioners is necessary.

However, only certain categories of women, as notified by the Medical Termination of Pregnancy Rules, 2021, are allowed to undergo an abortion from twenty weeks to twenty-four weeks.

  1. In the case of gestational period exceeding twenty-four weeks for cases of foetal anomaly the pregnant person must approach a medical board constituted by the State Government or Union Territory Administration.

Anisha Aggarwal (Senior Director, Ipas Development Foundation) emphasized on the urgent need to demystify the legal framework with respect to abortion, particularly in light of the recent amendments. Professor Dipika Jain (Professor and Director, Centre for Justice, Law and Society, Jindal Global Law School) noted that even though abortion is legal in India, the healthcare service providers are dissuaded from providing abortion services due to a fear of criminal prosecution, particularly since pregnancies are directly or indirectly governed and impacted by 26 legislations (in addition to the MTP Act), including sections 312-318, Indian Penal Code 1860, the Protection of Children from Sexual Offences Act, 2012, and the Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994 (the PCPNDT Act).

Dr. Alka Barua, a paediatrician, highlighted that “While the PCPNDT Act and the MTP Act are entirely separate in intent and operation, there is a conflation on the ground which acts as a significant barrier to accessing safe and legal abortions: the law, despite its intent, has become another stumbling block due to its language and enforcement.”

Vqueeram (Independent Researcher) emphasised that “Conversations about rights cannot happen without conversations about access – we tend to think of rights discourse as individualistic, but the handbook demonstrates how all of us are deeply linked in conversations on rights, which are intertwined with conversations on access.”

Pregnant persons, including transgender persons, non-binary persons, gender non-conforming and gender variant persons, Dalit persons, Adivasi, indigenous persons and De-notified tribes, persons living in poverty, migrants, persons with disabilities, persons living in rural areas and sexual minorities already face significant barriers in accessing SRHR services including abortion. It is, therefore, imperative that healthcare service providers understand that abortion is legal under MTP Act for all pregnant persons. Healthcare providers must work to facilitate access to abortion for everyone without discrimination to support pregnant persons in affirming their fundamental right to decisional autonomy.

Further, Dr. Tank emphasised that “Physicians do not exist in a vacuum, so any training for physicians also needs to focus on the healthcare ecosystem” and there is “an urgent need to understand why healthcare providers and the healthcare ecosystem generate stigma related to abortion.”

Anand Sinha, India country advisor, David and Lucille Packard Foundation, stated that “The interpretation of law is a critical first step when thinking about abortion. The handbook unpacks dense information and adds courage to the movement.”

“At JGU, we share the commitment to create spaces within universities for critical engagement and on issues of social justice, and the importance of initiatives that involve engagement with multiple stakeholders, including healthcare providers,” said Professor (Dr) C. Raj Kumar, Founding Vice Chancellor, O.P. Jindal Global University.

Source: Official Blog of O.P. Jindal Global University

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