Abortion in India

Abortion in India

Abortion in India has been legal under various circumstances for the last 50 years with the introduction of Medical Termination of Pregnancy (MTP) Act in 1971. The Act was amended in 2003 to enable women’s accessibility to safe and legal abortion services.[1]

In 2021, MTP Amendment Act 2021 was passed with certain amendments in the MTP Act including all women being allowed to seek safe abortion services on grounds of contraceptive failure, increase in gestation limit to 24 weeks for special categories of women, and opinion of one provider required up to 20 weeks of gestation. Abortion can be performed until 24 weeks pregnancy after MTP Amendment Act 2021 comes in force by notification in Gazzette[2] 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.[3] Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion being set at ₹15,500 (US$220) which includes consultation, therapy, hospitalization, 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.[4]

When a woman gets a pregnancy terminated voluntarily from a service provider, it is called induced abortion.[5]Spontaneous abortion[5] 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[6] 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 However, with abortion technology now becoming safer, this has been replaced by a three tier classification of safe, less safe, and least safe permitting a more nuanced description of the spectrum of varying situations that constitute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:[6] provided by health-care workers and with methods recommended by WHO.
  • Less-safe abortion:[6] 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:[6] done by a trained provider using dangerous, invasive methods.

Comprehensive Abortion Care (CAC),[7] 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[8] in 2000. The concept of CAC encompasses care through the entire period from conception to post abortion care and includes pain management.

Before 1971 (Indian Penal Code, 1860)

Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860,[9] describing it as intentionally “causing miscarriage[10]“. 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[11] 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.[12] To address this, the government of India instated a committee in 1964 led by Shantilal Shah[12] to come up with suggestions to draft the abortion law for India. The recommendations of this committee were accepted in 1970 and introduced[12] 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[13] 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[14] 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[15][16] 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 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.

MTP Amendment Act, 2021

On January 29, 2020, Government of India[17] first introduced the MTP Amendment Bill 2020, which was passed in Lok Sabha on March 17, 2020. A year later, the Bill was placed in Rajya Sabha and was passed on March 16, 2021 as the MTP Amendment Act 2021. The Amendments are as below:

  • Married clause dropped – The MTP Act earlier permitted termination of the pregnancy by only a married woman in the case of failure of contraceptive method or device. With the amendment, unmarried women can now seek safe abortion services on grounds of contraceptive failure.
  • Increase in gestation limit – Under the MTP Act 1971, the time limit for terminating pregnancy was up to 12 weeks on the advice of one doctor and up to 20 weeks on the advice of two doctors. Moreover, post 20 weeks terminating pregnancy was not permitted. However, now all women can terminate pregnancy up to 20 weeks on the advice of one doctor and special categories of women (survivors of sexual abuse, minors, victims of rape, incest, differently abled women) can seek termination up to 24 weeks. Moreover, women/couples can seek termination of pregnancy, anytime during the gestation period for foetal anomalies, as diagnosed by the Medical Boards.
  • Medical Boards – The amendments mandate constitution of Medical Boards in all the states and union territories for diagnosing substantial fetal anomalies. The Board will decide if a pregnancy may be terminated after 24 weeks and each board will have a gynecologist, radiologist/sonologist, pediatrician and other members notified by the government.
  • Confidentiality – A registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated to a person authorized by law.  Violation is punishable with imprisonment up to a year, a fine, or both.

Even after 50 years of the Medical Termination of Pregnancy Act,[1] abortion has not been decriminalised. The Indian Penal Code, 1860 (IPC) makes abortion (‘miscarriage’) a criminal offence under Section 312.[11] The MTP Act is the exception to this law. The law safeguards registered medical practitioners by laying down certain conditions under which they can terminate the pregnancy. Moreover, the MTP Act specifically states pregnant “women”, hence making abortion services inaccessible to trans-personsgender queer and gender non-conforming, as well as others of gender diverse identity who do not identify as women.

Policy and Programmatic Interventions of the Government

The MTP Act 1971 provides the legal framework for provision of induced abortion services in India. However, to ensure effective roll-out of services there is a need for standards, guidelines and standard operating procedures.

The Government of India has taken several measures to ensure the implementation of the MTP Act and make CAC services available to women. Some of them include:

  • Comprehensive Abortion Care–Service Delivery and Training Guidelines 2010 were issued by MoHFW in 2010. These guidelines provide comprehensive information on all aspects of abortion care including counselling, legal issues, abortion provision, and post abortion contraception for programme managers and doctors. These guidelines are being used by all states and union territories to standardize CAC trainings and service delivery.
  • In 2014, MoHFW took cognizance of technological updates and global best practice and constituted an expert group to update the Comprehensive Abortion Care–Service Delivery and Training Guidelines. The revised CAC guidelines were issued in 2014.
  • CAC training package: To ensure consistency in CAC trainings across the country, MoHFW developed a standardized training package including trainer’s manual, provider’s manual, and operational guidelines on CAC and a CD of training games. This package was developed after consultation with experts and issued by the MoHFW in 2014. It is being used for training MBBS doctors as certified providers in all states and union territories.
  • Trainer’s manual: The manual is designed to provide trainers with detailed guidelines and aids for conducting CAC trainings. The manual aims to enhance skills of doctors for providing respectful, confidential and high quality CAC services to women.
  • Provider’s manual: The manual is designed to provide requisite clinical skills to the providers, increase the capacity of nursing staff to support the providers and provide detailed guidelines on how to conduct the CAC services.
  • Operational guidelines on CAC services: The Operational Guidelines on CAC services were also included as part of the training package with the objective to guide programme managers on implementation of women centered CAC at all levels of public health facilities.
  • State Program Implementation Plans Archived 29 October 2014 at the Wayback Machine (PIPs): All states and union territories are required to submit their annual Programme Implementation Plans as part of the National Health Mission for implementation of health interventions at public health facilities. These are reviewed by MoHFW and fund allocation is made on the Record of Proceedings (RoPs) after approval in the National Program Coordination Committee (NPCC). All states include budgets for CAC implementation including training, service delivery, procurement, orientation workshops etc. in the annual PIP.
  • Ensuring Access to Safe Abortion and Addressing Gender Biased Sex Selection: The MTP Act and the PC&PNDT Acts are designed to regulate completely different areas. However, at the level of implementation, the need for clarity in keeping the implementation apart has been articulated often. UNFPA and Ipas had collaborated in 2012 to draft frequently asked questions on interlinkages of gender biased sex selection and access to safe abortions.[18] This document was designed to provide clarity on the provisions of the two laws to policy makers.
  • A need for clarity in implementation of the two laws and keeping them apart continued to be articulated from the states and districts. This was re-emphasized at the Government of India (GoI) – Ipas Development Foundation (IDF) national consultation on Prioritizing CAC for Women within NHM[19] held on 19–20 May 2014. GoI constituted an expert group to review the situation on ground and draft the required guidelines.
  • For addressing conflation of the Medical Termination of the Pregnancy (MTP) Act 1971, and Pre-Conception and Pre-Natal Diagnostic Techniques (PC&PNDT) Act 2012, and ensuring unimpeded access to CAC services MoHFW, GoI issued a Guidance Handbook and ready reckoner on Ensuring Access to Safe Abortion and Addressing Gender Biased Sex Selection. The experts reviewed the provisions of both the acts and the situation on the ground and drafted a guidance handbook on ensuring access to safe abortion and addressing gender biased sex selection. The handbook contains simplified guidelines on both laws and is designed to provide information to implementing authorities of the MTP Act and PC&PNDT Act; providers; compliance with the laws for providers of services under both the laws; and information on designing and implementing communication on both these issues. The ready reckoner provides a quick reference to the Guidance Handbook.
  • Health Management Information System (HMIS) is an initiative by the MoHFW, GoI under the National Health Mission to provide comprehensive information on all indicators for health services being offered primarily in the public sector. HMIS has provisions for real-time facility based reporting. This portal is dynamic and is updated daily. It provides reports on health service delivery by indicator and state. Abortion service delivery is also recorded in the HMIS system. Recent reports show that reporting on abortion service delivery is highly under-reported. It captures abortion indicators such as abortion up to 12 weeks of pregnancy, abortion more than 12 weeks of pregnancy, number of women treated for post abortion complications, and number of women provided with post abortion contraception.
  • National mass media campaign: The first ever national mass media campaign on making abortion safer was launched by the MoHFW, GoI in 2014. IDF worked in close collaboration with the MoHFW to develop this mass media campaign. The campaign focuses on normalizing abortion, with the key message safety in early abortion.