by Vishakha Nagraj

Introduction

India consists of various socio-religious structures which influence the way society is governed. Abortion is an issue which has been largely debated over decades with arguments on both the ends. This paper aims to explore the abortion laws and the economic impacts of these laws through statistics and figures surrounding abortion. Furthermore, it seeks to explore a few possible economic impacts of widening the ambit of the Indian Abortion laws.

Incentives

Given the current status of our society, with an increasing population and patriarchal insitutions playing a role in governing the society, it becomes imperative for us to uphold basic rights of each individual in the society. Maternal mortality rate is one of the indicators of overall progress of the economy. According to a recent study conducted, every year, worldwide, about 42 million women with unintended pregnancies choose abortion, and nearly half of these procedures, 20 million, are unsafe. Some 68,000 women die of unsafe abortion annually, making it one of the leading causes of maternal mortality (13%). Of the women who survive unsafe abortion, 5 million will suffer long-term health complications. Unsafe abortion is thus a pressing issue.

Objective

To analyze how widening the ambit of MTP Act, 1971 through the recent draft amendment and/or other progressive changes is economically beneficial in the long run.

Brief Legal History and Existing Legal Status of Laws Governing Abortions in India

The Indian Penal Code, 1860 penalises any person who causes miscarriage of a woman with child if the miscarriage is “not caused in good faith for the purpose of saving the life of the woman” and provides punishment in terms of imprisonment and fine. The term “any person” includes the woman herself who is carrying the child.

In the case of Nand Kishore Sharma v Union of India, the court upheld that the MTP Act, 1971 was in consort with Article 21 of the constitution and hence, not ultra vires the constitution. It upheld that Section 3 of the act aims at termination of pregnancy in the interest of the woman or the to-be-child and the dominant objective was “to save the life of the pregnant woman or to relieve her of any injury toward physical and mental health or prevent the possible deformities in the child – to be born.” They further mentioned that the act “seeks to liberalize certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure – When there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds – Such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.; (3) eugenic grounds – Where there is substantial risk that the child, if born, would suffer from deformities and diseases.”

In 2014, a draft amendment bill was proposed by the Health ministry with the aim of allowing for abortions in case of contraceptive failure irrespective of whether the woman is married or not, removing the twelve-week ceiling in the case of terminations involving substantial foetal abnormalities, anonymity of the woman undergoing termination, replacing the term “registered medical practitioner” with “registered health care provider”, etc. This amendment would lead to an increase in centres which provide a safe environment for abortions and would lead to a decrease in the rate of unsafe abortions.

The Abortion Debate: Pro-life v Pro-choice and the Harsh Realities

The abortion debate mainly centers around two stances taken by people, namely, Pro-life and Pro-choice. Pro-life activists mainly bank upon the ambiguity with respect to whether or not the foetus constitutes a human being and is consequently, capable of availing Fundamental Rights as guaranteed by the constitution. They belief that the foetus can be regarded as a life and abortion amounts to an offense as it is equivalent to killing an innocent. Many Pro-life activists quote the Hippocratic oath, which acts like a Preamble for medical students and professionals and states that “I will maintain utmost respect for human life, from the time of conception; even under threat. I will not use my medical knowledge contrary to the laws of humanity.”  Although, it could be debated that the term “conception” refers to the beginning of time and not conception of the foetus as the linguistics have changed over the years and that the definition of terms like “humanity” remain ambiguous. Other arguments are regarding the health of the mother- there has been some evidence that abortion may lead to higher emotional trauma, greater risk of breast cancer later in life and in case of unsafe abortions, there exist high chances of multiple complications which might make the woman infertile because of damage to or infection of the uterus. Pro-choice activists argue that each woman possesses the right to bodily autonomy and she has the right to decide carry or terminate the pregnancy without being coerced or morally policed. In many cases, the pregnancy might pose danger to both, the life of foetus and the mother, if carried. Increasing restrictions on abortions might just lead to individuals resorting to unsafe means to terminate pregnancies which might not just endanger the life of the woman but might lead to a situation where the mother is forced to abandon her child for the fear of social consequences or if she chooses to carry the child against her will or appropriate planning and funds, the child is likely to grow up in dismal circumstances. Allowing for safe abortions which are not restricted just to situations which pose grave danger to health might lead to a decrease in unsafe abortions and encourage women to exercise their right over bodily autonomy and ensure that a child is born under healthier circumstances with greater possibility of a better future. In a recent judgment by the Supreme Court in the case of Sarmistha Chakraborty v Union of India, Chief Justice Dipak Misra held that “a woman has sacrosanct right to her bodily integrity and it’s her choice” and allowed a woman to abort her 26-week old foetus with abnormalities.

Requirement for a Less Restrictive and More Accessible Legal Mechanism

According to a study conducted for ‘The Abortion Assessment Project-India’ of 380 abortion centres (out of which 280 were private) across six states, there occur around 6.4 million legal abortions per year in India out of which approximately 4.8 million take place formally and the rest are through traditional or medically unqualified persons but they take on 33% of the cases handled by formal sources. On an average there exist 40,000 facilities or 48,000 providers (each facility averages 1.2 providers). Out of the formal sources 55% are.gynaecologists. Only 24% of all private centres account for legal and certified procedures. The study provided that 68% out of those who had not obtained certification had never tried to obtain certification. Therefore, the main issue is that most medical practitioners are not keen to become certified so as to to be held liable by the law. This shows the prevalence of unethical means and lack of implementation of procedures to inculcate ethics. On the other hand, the study observed that 2/3 providers in the non-certified.facilities had the required experience and training and there was not much difference observed in available technological facilities, thereby ensuring safe abortions even in uncertified centres.  

However, it was observed that almost 90% of the abortion services in the formal sector was provided by private agencies. This makes it extremely difficult for women from low income class or other socially backward groups to access such services as the average cost of availing abortion in the private Industry is seven times costlier than availing it from public facilities. Many women do not have the money or the means to travel to these abortion centres and the added social stigma acts like one of the biggest hinderances in availing abortion facilities. Many providers in formal and certified centres insist on providing services only to women who are accompanied by their spouses or some relative who gives consent even though there exists no statutory requirement of such kind to avail the procedure. This indicates the prevalence of the patriarchal notion that a woman must depend on her husband or some other familial member to have a say and is merely a person governed by her familial ties. Seeking an abortion becomes more difficult for unmarried and divorced women as their situation leads to their bodies turning into a battleground for a debate between socially imposed “sexual morality” and inherent right over sexual and bodily autonomy. Although the new amendment seeks to promote complete autonomy, many women fear disclosing information about their pregnancy in public due to the social stigma surrounding it and this in turn leads to women resorting to availing abortion services from sources which are not certified and hence, may not be held accountable for reasonable standards of care. As regards reasons for seeking induced abortions, only 25% of them fall into what is permitted under the MTP Act (failure of contraceptives, threat to the woman’s life, biological reasons), the rest were unwanted pregnancy, economic reasons and even unwanted sex of the foetus.

In the United States, a turnaway study conducted the organization Advancing New Standards in Reproductive Health (ANSIRH) studied women who were denied abortions and its link to becoming economically disadvantaged in the following years. The findings stated that, “When a woman is denied the abortion she wants, she is statistically more likely to wind up unemployed, on public assistance, and below the poverty line. Another conclusion we could draw is that denying women abortions places more burden on the state because of these new mothers’ increased reliance on public assistance programs.”

They also established a link between domestic abuse and denial of abortion. Those who were denied abortions were likely to stay with abusive partners than women who did not get denied. This scenario is also likely to occur in a country like India where the social stigma for getting abortions of women without an associated male partner is higher than for females who are married or in a committed relationship. Another link established was the comparitive mental health between the two groups. The study indicated that women who could not get the child aborted had greater feelings of anxiety than those who could, although these feelings faded over the period of a year or so. They also found differences in health of the two groups. The study states, “We find physical health complications are more common and severe following birth (38% experience limited activity, average 10 days) compared to abortion (24% limited activity, average 2.7 days). There were no severe complications after abortion; after birth complications included seizure, fractured pelvis, infection and hemorrhage. We find no differences in chronic health conditions at 1 week or one year after seeking abortion.”

Policy Implications and How Widening the Ambit of Abortion Laws Impacts the Economy

According to the World Health Organization, one women dies every eight minutes due to complications arising out of unsafe abortions. It is difficult to acquire accurate data on unsafe abortions in developing nations as most nations do not have the capacity to collect data and many of such abortions go un reported as it is either done by non-registered or untrained individuals or by local women and at times, by pregnant women themselves who administer pills as these methods do not lead to social trauma which could accompany in case of abortions by registered facilities. Data provides that the number of unsafe abortions taking place every year in developing countries is increasing rapidly. From 1995 to 2003, the overall number of abortions declined, but the unsafe abortion rate was steady (from 15 to 14 abortions per 1000 women, respectively), constituting an increase from 44% to 48%. Instituting the amendment might lead to an increase in accessibility and lesser maternal mortality rates.

In a study conducted by Phillips & Ghouse, financial strain, poverty and social factors of a woman’s status being unmarried, widowed or separated were one of the main reasons to acquire abortion services. The living standards of children who grow up as a result of healthy and planned pregnancies is likely to be different. As a result, there would be lesser children growing up with abnormalities, in poor living conditions or adoption homes. This helps the economy as it increases the possibilities of individuals being driven towards development of the economy as “assets”, decreasing “liabilities”(in an economic understanding of the term) and also reduces the likelihood of becoming a single parent. Some argue that widening the ambit might lead to an increase in female foeticide. Hilda Scott stated that, “—women’s emancipation, not merely a women’s question, but, a function of the general drive for greater equality which affects everyone …. the care of children becomes a fact which society has to take into consideration’ (Scott 1974: 190). However, regulating female foeticide is a matter of policy implementation and that cannot put be at a higher pedestal or used as an excuse to deny a woman her right to personal liberty and bodily autonomy. In conclusion, to change the existing gendered division of labour, one must first acknowledge social realities and aim to achieve formal equality, if not substantial equality, by providing social justice through greater accessibility to legal mechanism to the minorities and oppressed classes. Hence, although the amendment might not encompass changes which might lead to drastic social changes overnight, it still provides for various possibilities which open doors for greater accessibility and awareness about self-care.

References:

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2. Foster DG, Roberts S, Steinberg J, Neuhaus J, Biggs MA. A comparison of depression and anxiety symptom trajectories between women who had an abortion and women denied one. Psychological Medicine (2015) Jul; 45(10):2073-2082.
3. Haddad, Lisa B, and Nawal M Nour. “Unsafe Abortion: Unnecessary Maternal Mortality.” Reviews in Obstetrics and Gynecology 2.2 (2009): 122–126. Print.
4. Nand Kishore Sharma v Union of India, AIR 2006 Raj 166
5. Phillips F.S., Ghouse N. Septic abortion — three year study, 1971–73: hazards of septic abortion as compared to medical termination of pregnancy at Government Erskine Hospital, Madurai. J Obstet Gynecol India. 1976;26:652–656.
6. Ravi Duggal, Vimala Ramachandra, The abortion assessment project–India: key findings and recommendations, Reprod Health Matters. 2004 Nov; 12(24 Suppl): 122–129.
7. Roberts SCM, Biggs MA, Chibber KS, Gould H, Rocca CH, Foster DG. Risk of violence from the man involved in the pregnancy after receiving or being denied an abortion. BMC Medicine (2014) Sept; 12:144
8. S. 312, Indian Penal Code, 1860
9. Sarmistha Chakraborty v Union of India AIR 2017
10. Sedgh G, Henshaw S, Singh S, et al. Induced abortion: rates and trends worldwide. Lancet. 2007;370:1338–1345.

Vishakha Nagraj, the author, is a second year law student at Jindal Global Law School.

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