By Shreya Govil
The article focuses on the relationship between unsafe abortion practices and abortion laws in
light of the Medical Termination of Pregnancy Amendment, 2021. We focus on the correlation
between abortion laws and safe abortions while understanding how restrictive as well as liberal
abortion laws impact maternal health. The article discusses other factors like health care
facilities, education and their impact on access to safe abortions. The article also draws
parallelisms between the MTP Act 1971 and the amendment.
Statistics show that worldwide there are 42 million unintended pregnancies every year. And 20
million of these women often resort to unsafe methods of abortion. The World Health
Organisation’s records indicate that in developing countries every 8 minutes a woman dies every
8 minutes due to unsafe abortion practices. These cases are often underreported because such
abortions are carried out by untrained individuals and are undocumented.
When unsafe abortion methods are used there is often the risk of maternal mortality which is
highly dependent on the willingness of the woman to seek post-abortion care. These unsafe
methods include drinking toxic fluids like turpentine, bleach, or drinkable concoctions. Other
methods inflictinclude direct injury to the vagina or elsewhere. Each year more than the 5 million
women are hospitalized due to the use of such unsafe methods and such deaths leave 220,000
children motherless. The long-term effects of such abortions are often infertility, poor wound
healing, and internal organ injury.
It is important to keep in mind unsafe abortions will continue to be rampant if abortion laws are
not improved with the changing times and good education and healthcare are inaccessible to such
women. If we look at the recent Medical Termination of Pregnancy Act Amendment,
considering the problem of unsafe abortions, one understands the need for the amendment and its
potentially positive impact on the maternal health of Indian women.
Abortion law: A Spectrum of restrictiveness –
There happens to be an interesting relationship between unsafe abortions and restrictive abortion
laws. The median rate of unsafe abortion in 82 countries with restrictive laws is 23 per 1000
women while 2 per 1000 women in nations with liberal abortion laws. And abortion-related
deaths are more common in restrictive countries than the less restrictive ones. In developing
countries from 1995 to 2003 the overall number of abortions declined but the rate of unsafe
abortions increased from 44% to 48%. In western and developed countries only 3% of abortions
are unsafe while in developing nations 55% of abortions are unsafe.
It is also important to note that less restrictive abortion laws do not necessarily mean more
abortions. For example in Europe where the abortion laws are more liberal, the abortion rates
are the lowest with less than 10 per 1000 women. While in the areas like Africa, Latin America,
and the Caribbean, where abortion laws are more restrictive and contraception use is low,
abortion rates tend to be higher. For eg?
But less restrictive abortion laws do not guarantee safe abortions. Factors like good education
and access to healthcare play an important role. For example, in India despite the Medical
Termination of Pregnancy was passed in the 1970s unsafe abortions continue to exist. The act
did remove the legal hindrances to getting abortions but the lack of access to good healthcare
facilities continued to exist. Cambodia also has a similar story where even though abortion laws
are liberal women often try to abort themselves before going to the hospital. It is very important
to recognize that having liberal laws alone is not enough to ensure that people have access to safe
abortions. Although there is a higher prevalence of abortion among educated women, the risks
related to unsafe abortions are higher among uneducated women. So access to a good education
is also very important as it makes them aware of contraception use and the risks involved with
unsafe abortions. Many women in India do not avail of abortion facilities due to the social
stigma. Even though women can legally get an abortion the patriarchal norms often take away
women’s autonomy. The ground reality is that when women go to abortion clinics they often
have to show the consent of their husbands in order to get the procedure. So all of this forces
many women to resort to unsafe abortion practices.
Parallelsism: Medical Termination of Pregnancy Act 1971 and MTP Act Amendment-
India liberalized its abortion laws in 1964 due to the high maternal mortality rates. It was
observed most of the abortions were sought by married women who faced no social pressures to
hide their pregnancies. It was decided that all abortions would be carried out by trained medical
professionals. And the method of carrying out abortion would be to use mifepristone and
misoprostol. The Medical Termination of Pregnancy act of 1971 allowed abortion up to 20
weeks with the consultation of two medical practitioners. If the pregnancy is a risk to the life of
the mother or the unborn child. And in the case of rape, abortion was allowed as having the child
would cause grave injury to the woman. And contraceptive failure was an acceptable ground for
a married woman to seek an abortion. However, this act did not cover unmarried women,
throughout different amendments the limit stayed constant at 20 weeks of pregnancy.
The amendment increases the upper gestation period from 20 to 24 weeks for survivors of rape,
victims of incest, and other vulnerable women. Now the opinion of one provider is needed if the
abortion is up to 20 weeks and the opinion of two medical practitioners if the period is from 20-
24 weeks. And the upper gestation limits do not apply in case of fetal abnormalities diagnosed by
a Medical Board. The act also has a confidentiality clause wherein the details of the woman
would not be disclosed unless the person is authorized by law. One of the most revolutionary
aspects of the amendment is that it grants the Medical Termination of Pregnancy Act, 1971
Amendment services to unmarried women in case of contraceptive failure.
The amendment allows access to “safe abortion services on therapeutic, eugenic, humanitarian
and social grounds.” This amendment would help in achieving sustainable development goals of
ending preventable maternal mortality. The focus of such decisions is to work towards a rights-based approach that gives greater autonomy to women and works at the grassroots level.
Obstacles faced by women-
In India even though abortion is legally permissible, the doctor has the final say. And the woman has to prove to the doctor that the pregnancy occurred due to contraceptive failure, which puts a lot of unnecessary pressure on the woman.
There exists a significant gap in the abortion policy in India. The lack of policies and regulations
on clinical practitioners is a major problem. The national technical guidelines in India are not in
line with the WHO’s guidelines and there is a failure to ensure good clinical practice. There are a
lot of fraudulent practitioners in rural areas that provide abortion services which can put the life
of the pregnant woman in danger. One of the main goals to achieve zero maternal mortality is to
improve healthcare services. It is necessary to keep in mind that very few women have access to
safe abortions and especially inaccessible to women living in rural and remote areas.
It is also important to understand that when India’s abortion laws were liberalized the legislators
at the time were not really concerned with women’s autonomy or abortion. But their bigger
concern was population control and family planning. This eventually became the driving force
for the liberalization of the abortion laws. This can also be reflected in the mass sterilization
policies passed by the government at the time.
The amendment of 2021, therefore, was long overdue and much needed as they expanded the
ambit to include unmarried women and also increased the abortion threshold due to advancement
in medical science. Through numerous court judgments, the Indian Judiciary has pushed the
boundaries of the Medical Termination of Pregnancy Act. With the Murugan Nayakkar V. Union
Of India Judgement, the court allowed an abortion post the 24 weeks deadline on the grounds of
rape of minors.
Liberalization of laws alone would not help in reducing the cases of unsafe abortions. The are
some strategies that can be used to improve access to safe abortion services. Increasing the
number of qualified providers, especially in rural areas, would play an important role in making
abortion services more accessible. Similarly simplifying the certification process, having uniform
standards for both private and public clinics,s and ensuring quality abortion care would have a
similar effect. The Amendment is indeed a revolutionary step but much more needs to be done to
improve the condition of maternal health.
Shreya Govil is a student of the B.A. LL.B 2020-2025 batch of Jindal Global Law School. Their areas of interest are constitutional law, gender studies and Human rights law.