ABORTION IN INDIA

Abortion in India is legal and can be performed until 24 weeks pregnancy after MTP act amendment 2021 comes in force by notification in Gazzette[1] of India with notification of formation of MTP amendment 2021 rules and regulations. Until then, abortion law in India allows termination of pregnancy till 20 weeks. In exceptional cases, a court may allow a termination after 20 weeks.[2] Abortion is covered 100% by the government’s national health insurances, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion being set at ₹15,500 (US$220) which includes consultation, therapy, hospitalisation, medication, USG and any follow-up treatments. For medical abortion, the package rate is set at ₹1,500 (US$21) which includes consultation and USG. [3]

When a woman gets a pregnancy terminated voluntarily from a service provider, it is called induced abortion.[4] Spontaneous abortion[4] is the loss of a woman’s pregnancy before the 20th week that can be both physically and emotionally painful. In common language, it is called a miscarriage.

Till 2017, there was a dichotomous classification of abortion as safe and unsafe. Unsafe abortion[5] was defined by WHO as “a procedure for termination of a pregnancy done by an individual who does not have the necessary training or in an environment not conforming to minimal medical standards.” However, with abortion technology now becoming safer, this has been replaced by a three tier classification of safe, less safe, and least safe permitting a more nuanced description of the spectrum of varying situations that constitute unsafe abortion and the increasingly widespread substitution of dangerous, invasive methods with use of misoprostol outside the formal health system.

  • Safe abortion:[5] provided by health-care workers and with methods recommended by WHO.
  • Less-safe abortion:[5] done by trained providers using non-recommended methods or using a safe method (e.g. misoprostol) but without adequate information or support from a trained individual.
  • Least-safe abortion:[5] done by a trained provider using dangerous, invasive methods.

Comprehensive Abortion Care (CAC),[6] a term “rooted in the belief that women must be able to access high-quality, affordable abortion care in the communities where they live and work”, was first introduced in India by Ipas[7] in 2000. The concept of CAC encompasses care through the entire period from conception to post abortion care and includes pain management.

Abortion law in India

Before 1971 (Indian Penal Code, 1860)

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860,[8] describing it as intentionally “causing miscarriage[9]“. Except in cases where abortion was carried out to save the life of the woman, it was a punishable offense and criminalized women/providers, with whoever voluntarily caused a woman with child to miscarry[10] facing three years in prison and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine.

It was in the 1960s, when abortion was legal in 15 countries, that deliberations on a legal framework for induced abortion in India was initiated. The alarmingly increased number of abortions taking place put the Ministry of Health and Family Welfare (MoHFW) on alert.[11] To address this, the government of India instated a committee in 1964 led by Shantilal Shah[11] to come up with suggestions to draft the abortion law for India. The recommendations of this committee were accepted in 1970 and introduced[11] in the Parliament as the Medical Termination of Pregnancy Bill. This bill was passed in August 1971 as the Medical Termination of Pregnancy Act.

Shah committee key highlights

  • The Shah Committee was appointed by the Government of India in 1964.
  • The Committee carried out a comprehensive review of the socio-cultural, legal and medical aspects of abortion.
  • The Committee in 1966 recommended legalizing abortion in its report to prevent wastage of women’s health and lives on both compassionate and medical grounds.
  • According to the report, in a population of 500 million, the number of abortions per year will be 6.5 million – 2.6 million natural and 3.9 million induced.

Abortion incidence in India

It is estimated that 15.6 million[12] abortions take place in India every year. A significant proportion of these are expected to be unsafe. Unsafe abortion is the third largest cause of maternal mortality leading to death of 10 women each day and thousands more facing morbidities. There is a need to strengthen women’s access to CAC services and preventing deaths and disabilities faced by them.

The last large-scale study on induced abortion in India was conducted in 2002 as part of the Abortion Assessment Project. The studies as part of this project estimated 6.4 million[13] abortions annually in India.

The Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework for making CAC services available in India. Termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below:

  • When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health;
  • When there is substantial risk that the child, if born or dead would be seriously handicapped due to physical or mental abnormalities;
  • When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman);
  • When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute grave injury to mental health of the woman).

The MTP Act specifies – (i) who can terminate a pregnancy; (ii) till when a pregnancy can be terminated; and (iii) where can a pregnancy be terminated. The MTP Rules and Regulations, 2003 detail training and certification requirements for a provider and facility; and provide reporting and documentation requirements for safe and legal termination of pregnancy.

Who can terminate a pregnancy?

As per the MTP Act, pregnancy can be terminated only by a registered medical practitioner (RMP) who meets the following requirements:

(i) has a recognized medical qualification under the Indian Medical Council Act

(ii) whose name is entered in the State Medical Register

(iii) who has such experience or training in gynaecology and obstetrics as per the MTP Rules (iv) when the socio-economic condition of the family is poor and the couple already has 2-3 children.

Where can a pregnancy be terminated?

All government hospitals are by default permitted to provide CAC services. Facilities in the private sector however require approval of the government. The approval is sought from a committee constituted at the district level called the District Level Committee (DLC) with three to five members. As per the MTP Rules, 2003 the following forms are prescribed for approval of a private place to provide MTP services:

  1. Form A [Sub-Rule (2) of Rule 5]: Application Form for Approval of a Private Place: This form is used by the owner of a private place to apply for approval for provision of MTP services. Form A has to be submitted to the Chief Medical Officer of the district.
  2. Form B [Sub-Rule (6) of Rule 5]: Certificate of Approval: The certificate of approval for private place deemed fit to provide MTP services is issued by the DLC on this format.

Whose consent is required for termination of pregnancy?

As per the provisions of the MTP Act, only the consent of woman whose pregnancy is being terminated is required. However, in case of a minor i.e. below the age of 18 years, or a mentally ill woman, consent of guardian (MTP Act defines guardian as someone who has the care of the minor. This does not imply that only parent/s are required to consent.) is required for termination. The MTP Rules, 2003 prescribe that consent needs to be documented on Form C as detailed below:

  1. Form C [Rule 9] Consent Form: This form is used to document consent of the woman seeking termination. Pregnancy of a woman who is above 18 years of age can be terminated with only her consent. If she is below 18 years of age or mentally ill, written consent of the guardian is required.

Whose opinion is required for termination of pregnancy?

The MTP Act details that for terminations up to 12 weeks, the opinion of a single Registered Medical Practitioner (RMP) is required and for terminations between 12 and 20 weeks the opinion of two RMP’s is required. However, termination is conducted by one RMP. The MTP Regulations, 2003 prescribe opinion of RMP/s to be recorded on Form I as detailed below:

  1. Form I [Regulation 3] Opinion Form: This form is used to record opinion of the RMPs’ for termination of pregnancy. For termination up to 12 weeks of gestation, opinion of one RMP is required whereas for the length of pregnancy between 12 and 20 weeks, opinion of two RMPs is required.
The MTP Regulations, 2003
  1. Form III [Regulation 5] Admission Register: This template is used to document details of women whose pregnancies have been terminated at the facility. The register needs to be retained for a period of five years till the end of the calendar year it relates to.
  2. Form II [(Regulation 4(5)] Monthly Statement: This form is used to report MTP performed at a hospital or approved place during the month. The head of the hospital or owner of the approved place should send the monthly report of MTP cases to the Chief Medical Officer of the district.

MTP Act, Amendments, 2002

The Medical Termination of Pregnancy (MTP) Act 1971, was amended in 2002 to facilitate better implementation and increase access for women especially in the private health sector.

  1. The amendments to the MTP Act in 2002 decentralized the process of approval of a private place to offer abortion services to the district level. The District level committee is empowered to approve a private place to offer MTP services in order to increase the number of providers offering CAC services in the legal ambit.
  2. The word ‘lunatic’ was substituted with the words ‘mentally ill person’. This change in language was instituted to lay emphasis that “mentally ill person” means a person who is in need for treatment by reason of any mental disorder other than mental retardation.
  3. For ensuring compliance and safety of women, stricter penalties were introduced for MTPs being conducted in unapproved sites or by untrained medical providers by the Act.

MTP Rules, 2003

The MTP Rules facilitate better implementation and increase access for women especially in the private health sector.

  • Composition and tenure of District Level Committee: The MTP rules 2003, define composition of the committee stating that one member of the committee should be a gynecologist / surgeon/ anesthetist and other members should be from the local medical profession, non-government organizations, and Panchayati Raj Institution of the district and one member of the committee should be a woman.
  • Approved place for providing medical termination of pregnancies: The MTP Rules 2003, provide specific guidelines pertaining to equipment, facilities, drugs, and referral linkages to higher facilities required by an approved place for providing quality CAC and post abortion services.
  • Inspection of private place: The MTP Rules 2003 state that an approved can be inspected by the Chief Medical Officer (CMO), as often as may be necessary with a view to verify whether termination of pregnancies are being done therein under safe and hygienic conditions.
  • Cancellation or suspension of a certificate of approval for a private place: As per the MTP Rules 2003, if the CMO of the District is satisfied that the facilities specified in rule 5 are not being properly maintained therein and the termination of pregnancy at such place cannot be made under safe and hygienic conditions, she/he shall make a report of the fact to the Committee giving the detail of the deficiency or defects found at the place. The committee may, if satisfied, can suspend or, cancel the approval of the place provided that the committee gives the owner of the place a chance of representation before the certificate issued under rule 5 is cancelled.

Proposed Amendments to the MTP Act, 2014

The Government took cognizance of the challenges faced by women in accessing safe abortion services and in 2006 constituted an expert group to review the existing provisions of the MTP Act to propose draft amendments. A series of expert group meetings were held from 2006– 2010 to identify strategies for strengthening access to safe abortion services. In 2013 a national consultation was held which was attended by a range of stakeholders further emphasized the need for amendments to the MTP Act. In 2014, MoHFW shared the Medical Termination of Pregnancy Amendment Bill 2014 in the public domain. The proposed amendments to the MTP Act were primarily based on increasing the availability of safe and legal abortion services for women in the country.

  • Expanding the provider base
  • Increasing the upper gestation limit for legal MTPs
  • Increasing access to legal abortion services for women
  • Increasing clarity of the MTP law

Expanding provider base: In order to increase the availability of safe and legal abortion services, it has been recommended to increase the base of legal MTP providers by including medical practitioners with bachelor’s degree in Ayurveda, Siddha, Unani or Homeopathy. These categories of Indian System of Medicines (ISM) practitioners have Obstetrician and Gynecology (ObGyn) training and abortion services as part of their undergraduate curriculum. It has also been recommended to include nurses with a three and half-year’s degree and registered with the Nursing Council of India, into the base of legal providers for abortion services. In addition, it has also been recommended that Auxiliary Nurse Midwives (ANM) posted at high case load service delivery points be included as legal providers of MMA only. These recommendations are supported by two Indian studies[14][15] that conclude abortion care can safely and effectively be provided by nurses and AYUSH practitioners.

Provisions to increase the gestation limit for abortions: It is recommended to increase the gestational limit for seeking abortions on grounds of fetal abnormality beyond 20 weeks. This would result in making abortion available at any time during the pregnancy, if the fetus is diagnosed with severe fetal abnormalities. In addition, further to the above recommendations, it is also proposed to include increasing the gestation limit for safe abortion services for vulnerable categories of women expected to include survivors of rape and incest, single women (unmarried/ divorced/ widowed) and other vulnerable women (women with disabilities) to 24 weeks. The amendments to the MTP Rules would define the details for the same.

Increasing access to legal abortion services for women: The Act in its current form imposes some operational barriers that limit women’s access to safe and legal abortion services. The amendments propose to:

  • Reducing the condition of requirement of the opinion of two health care providers for second trimester pregnancies to one health care provider only, as this is seen as a hindrance in access to safe abortion services by women in situations where two providers are not available: In 1971 when the MTP Act was passed about four decades ago dilatation and curettage (D&C) was the only available technology for termination of pregnancies. D&C now is an outdated invasive medical procedure that requires the use of a metal curette for removing products of conception. The provisions in the MTP Act for opinion of two medical providers or third party authorization for ensuring women’s safety needs to be reduced in light of newer and safer technological advancements that make abortion a very safe out-patient medical procedure. The WHO 2012 guidance on Safe abortion: technical and policy guidance for health systems also recommends reducing third party authorization. The WHO 2012 guidance defines a woman seeking an abortion as an “autonomous adult”, which means that “mentally competent adults do not require the authorization of any third party”, stating that “health-care providers should not impose a requirement of third-party authorization unless required by law and related regulations”.
  • Extending the indication of contraception to include unmarried women: As per the provisions of the MTP Act, contraceptive failure is the only condition that applies to married women. The proposal for amendment includes making contraceptive failure applicable for all women and their partners as with other reasons for termination of pregnancy under the MTP Act.

Increasing clarity on the MTP Act

  • The MTP Act does not have a definition of termination of pregnancy. For this purpose, it has been recommended to include a definition for termination of pregnancy.
  • It has been recommended to replace the term “registered medical practitioner” with “registered health care provider”. This would cover the expanded provider base being suggested, by bringing in Nurses and ANMs as well as Ayurveda, Unani, Siddha and Homoeopath practitioners as legitimate providers of abortion service.

References

  1.  “The Gazette of India”Wikipedia, 6 April 2021, retrieved 5 July 2021
  2. ^ “India rape victim, 13, allowed to abort”BBC News. 6 September 2017.
  3. ^ http://www.vmmc-sjh.nic.in/writereaddata/AYUSHMAN%20PACKAGES-PROCEDURES.pdf
  4. Jump up to:a b “Pratigya Campaign – Media Kit Glossary” (PDF). Pratigya – Campaign for Gender Equality and Safe Abortion. 20 June 2018. Archived from the original(PDF) on 20 June 2018. Retrieved 20 June 2018.
  5. Jump up to:a b c d Ganatra, Bela; Gerdts, Caitlin; Rossier, Clémentine; Johnson, Brooke Ronald; Tunçalp, Özge; Assifi, Anisa; Sedgh, Gilda; Singh, Susheela; Bankole, Akinrinola (November 2017). “Global, regional, and subregional classification of abortions by safety, 2010–14: estimates from a Bayesian hierarchical model”The Lancet390 (10110): 2372–2381. doi:10.1016/S0140-6736(17)31794-4ISSN 0140-6736PMC 5711001PMID 28964589.
  6. ^ “Ipas | Comprehensive Abortion Care”www.ipas.org. Archived from the original on 19 September 2018. Retrieved 20 June 2018.
  7. ^ “Ipas Development Foundation”ipasdevelopmentfoundation.org. Retrieved 20 June 2018.
  8. ^ “Abortion law: In 24-week pregnancy case, Supreme Court failed to address women’s right to their bodies – Firstpost”firstpost.com. Retrieved 20 June 2018.
  9. ^ Bean, Christopher B. (March 2014). “Antebellum Jefferson, Texas: Everyday Life in an East Texas Town. By Jacques D. Bagur. (Denton, TX: University of North Texas Press, 2012. Pp. 612. $55.00.)”. Historian76 (1): 106–107. doi:10.1111/hisn.12030_8ISSN 0018-2370S2CID 143926493.
  10. ^ “The Indian Penal Code 1860” (PDF). Archived from the original (PDF) on 24 October 2018. Retrieved 20 June 2018.
  11. Jump up to:a b c D, Gaur, K (1991). “Abortion and the Law in India”dspace.cusat.ac.in. Archived from the original on 26 June 2018. Retrieved 20 June 2018.
  12. ^ Singh, Susheela; Shekhar, Chander; Acharya, Rajib; Moore, Ann M; Stillman, Melissa; Pradhan, Manas R; Frost, Jennifer J; Sahoo, Harihar; Alagarajan, Manoj (January 2018). “The incidence of abortion and unintended pregnancy in India, 2015”The Lancet Global Health6 (1): e111–e120. doi:10.1016/s2214-109x(17)30453-9ISSN 2214-109XPMC 5953198PMID 29241602.
  13. ^ Duggal, Ravi; Ramachandran, Vimala (November 2004). “The abortion assessment project—India: key findings and recommendations”. Reproductive Health Matters12 (24 Suppl): 122–129. doi:10.1016/S0968-8080(04)24009-5ISSN 0968-8080PMID 15938165S2CID 7911826.
  14. ^ Jejeebhoy, Shireen J.; Kalyanwala, Shveta; Mundle, Shuchita; Tank, Jaydeep; Zavier, A. J. Francis; Kumar, Rajesh; Acharya, Rajib; Jha, Nita (September 2012). “Feasibility of expanding the medication abortion provider base in India to include ayurvedic physicians and nurses”International Perspectives on Sexual and Reproductive Health38 (3): 133–142. doi:10.1363/3813312ISSN 1944-0405PMID 23018135.
  15. ^ Jejeebhoy, Shireen J.; Kalyanwala, Shveta; Zavier, A.J. Francis; Kumar, Rajesh; Mundle, Shuchita; Tank, Jaydeep; Acharya, Rajib; Jha, Nita (1 December 2011). “Can nurses perform manual vacuum aspiration (MVA) as safely and effectively as physicians? Evidence from India”. Contraception84 (6): 615–621. doi:10.1016/j.contraception.2011.08.010ISSN 0010-7824PMID 22078191

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