Abortion Is Legal But How Many Indians Can Really Access It? This Report Answers

Advocate Vrinda Grover pointed out the prejudice against abortion despite the state’s desire to control population.

Abortion Is Legal In India, But How Many People Can Really Access It?

(Photo: Altered by The Quint)

When the US Supreme Court overruled the landmark judgment that granted citizens the constitutional right to abortion, social media users in India applauded their country’s well-established laws on reproductive rights.

Yes, abortion is legal in India and not left to the mercy of the states like it is in the United States - but is it accessible here?

An advocacy manual, titled 'Legal Regulation of Abortion in India: Complexities and Challenges,' released by the Law and Marginalisation Clinic, Centre for Justice, Law and Society (CJLS), Jindal Global Law School says:

The combined impact of laws regulating abortions in India has resulted in major barriers to accessing abortion services, particularly for marginalised individuals, including adolescents, persons with disabilities, Dalit, Bahujan and Adivasi persons, and transgender and gender-variant persons.

In fact, Supreme Court lawyer Vrinda Grover pointed out the irony in “deep-rooted prejudice against abortion of all kinds,” despite the state’s persistent desire to control population growth and family planning.

Grover was speaking at the launch event of the manual.

So, why is abortion in India difficult to access even though it is legal? 

Why Is Abortion Difficult To Access For Dalit, Bahujan & Adivasi People?

The manual tells the story of Babita Valmiki, a Dalit woman, who works as a manual scavenger and earns around Rs 250 a month.

But stigma attached to her caste and the expenses involved makes getting an abortion all the more difficult. Here's how:

Screenshot Source: Advocacy Manual on 'Legal Regulation of Abortion in India: Complexities and Challenges.'

“So, while discussing abortion and access to it we need to keep in mind that the society is constantly trying to take away the rights of a person that may have been given them to them by the law,” Dhrubo Jyoti, a journalist at The Hindustan Times, pointed out at the launch event. 

In particular, they emphasised the impact of caste-based discrimination on accessing abortion services as well as the media’s role in perpetuating the criminality or scandalous nature of abortions. 

What Problems Do Persons With Disabilities Face While Accessing Abortions?

If one wants to get an abortion after 24 weeks of gestation in India, it’ll be allowed only in case of “foetal abnormality” as diagnosed by a medical board.

However, this contributes to furthering the prejudice that disability is an exceptional situation, the manual points out.

“If it is safe and legal to terminate pregnancies after 24 weeks, why single out a foetus with an anomaly?”

The Advocacy Manual

Meanwhile, this is exactly how the law puts the rights of a person with disabilities on the backseat:

• The Medical Termination of Pregnancy Act requires the consent of a guardian for terminating the pregnancy of a person with a disability, thereby assuming that all persons with disabilities are incapable of providing free and informed consent

• “This provision perpetuates the harmful prejudice that all disabilities, particularly psychosocial and intellectual disabilities, necessarily lead to the incapacity to exercise decisional autonomy,” the report says

• The Rights of Persons with Disabilities Act, 2016 (Section 92) imposes penalties in relation to the provision of an abortion to a woman with a disability without their express consent

• However, the same act creates an exception for the provision of abortions to women with “severe cases of disability” as long as the abortion is authorised by an Registered Medical Practitioner (RMP) and consented to by the guardian of the woman

• Because the act does not define “severe cases of disability”, thus leaving room for interpretation and further violation of the rights of persons with disabilities.

Why is Abortion Difficult to Access for Transgender and Gender-Variant Folks?

“As a trans-masculine person, how do you convince healthcare professionals while you're medically transitioning that you’re pregnant ? The doctor’s first reaction is disbelief and the kind of humiliation that follows is too much,” Krishanu, a students right activist said.

The report also notes how the MTP Act uses the word “women” throughout.

However, as the Supreme Court has noted, access to abortion services is critical not only for cis-gender women, but also for transgender, intersex and gender-variant persons (X vs The Principal Secretary, Health & Family Welfare Department, Govt. of NCT of Delhi).

Elaborating on the discrimination experienced by them in getting access to abortion, Krishanu said:

"The trans population and sex workers population and Dalit population are seen as dirty and contaminated. Attendants refuse to touch patients...and the way medicine is practised, is difficult for such communities."

Why Is Abortion Difficult to Access for Adolescents?

1. The law (Section 3(4) of the MTP Act) mandates the consent of a guardian for medically terminating a minor’s pregnancy.

“However, the requirement to obtain guardian consent may also act as a deterrent against approaching RMPs, particularly in light of the taboo surrounding adolescent sexuality, thereby increasing the likelihood of adolescents resorting to unsafe and illegal abortions,” the report adds.

2. Under the POCSO act, reporting of sexual encounters, including consensual sex, involving adolescents is mandatory. Not reporting it may result in six months of imprisonment and/or the imposition of a fine. 

“Although this reporting requirement is intended to prosecute sexual abuse, it effectively acts as a barrier to the rights of adolescents to seek safe and legal abortion. This reporting requirement introduces a chilling effect on the ability of an adolescent to seek safe and legal abortion services,” the report points out.

3. Pertinently, while the POCSO Act was introduced to criminalise sexual assault, sexual harassment, and pornography against all persons below the age of 18, it does not account for consensual sexual relationships, and consent is therefore deemed irrelevant in determining liability. This has been noted by the top court, as well

“Sex with a person below the age of 18 years is statutory rape under the POCSO Act and, therefore, consensual relationships between adolescents are criminalised,” the report says.

This example in the manual illustrates this:

Screenshot Source: Advocacy Manual on 'Legal Regulation of Abortion in India: Complexities and Challenges.'

For recommendations that the manual makes for policy makers to make abortion accessible to all, click here.