Rethinking Abortion In India: A Human Rights Conversation

Statistics given by the World Health Organisation (WHO) on unsafe abortions globally paint a very worrying picture. Between 2015 and 2019, on average, 73.3 million induced (safe and unsafe) abortions occurred worldwide each year. Amongst these, 1 out of 3 abortions were carried out in the least safe or dangerous conditions. Over half of all estimated unsafe abortions globally were in Asia, most of them in south and central Asia. Each year between 4.7% – 13.2% of maternal deaths can be attributed to unsafe abortion. In the backdrop of these figures, Argentina's passage of the abortion bill is a positive step towards creating safe mechanisms for carrying out abortion in Argentina, thereby helping women and girls to access the most basic human right, i.e. the right to life.

Abortion and the right to life

The right to terminate pregnancy hinges on the most fundamental human right, that is right to life. The right to life, enshrined in Article 3 of the Universal Declaration of Human Rights, is the most valuable right that rests in every human being, and that which's effective protection is the prerequisite for the enjoyment of all other human rights. Treaty jurisprudence suggests that denying women access to abortion can amount to violations of the rights to health, privacy and many times, the right to be free from cruel, inhumane and degrading treatment. The General comment on right to life adopted by the UN Human Rights Committee explicitly advocates for women's right to safe abortion as an integral part of the right to life:

'restrictions on the ability of women or girls to seek abortion must not… jeopardize their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy. States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, and where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.'

Thus, the General comment places women's right to life above any state efforts to regulate voluntary termination of pregnancy and urges states to actively revise their abortion laws to ensure the same. It affirms that criminalising abortion is contrary to right to life of women and girls because such measures compel them to resort to unsafe abortion mechanisms. Despite the clear international consensus on the importance and urgency in facilitating safe abortions, women and girls in India continue to face systemic socio-cultural, economic, religious, political and infrastructural barriers in accessing safe and dignified abortion.

The MTP (Amendment) Bill 2020 in India

Criminalising abortion often causes denial or delay of safe abortion, and forced continuation of pregnancy, that are in fact forms of gender-based violence.^[1] Covid-19 exacerbated delays in accessing safe abortion facilities for women and girls in India, which will have long-lasting impacts on their lives. Although the Medical Termination of Pregnancy (Amendment) Bill 2020 (MTP Bill 2020) in India provides for certain provisions which are progressive, it still doesn't address some of the critical aspects about abortion that require urgent intervention.

In India, the MTP Bill 2020 was introduced in the Lok Sabha in March 2020 and was recently passed in the Rajya Sabha on 16^th March, 2021. Amongst the highlights of the bill is the extension of the period of conducting the abortion from 12 weeks (previously) to 20 weeks (revised) on advice by one medical practitioner. The upper gestation limit for certain categories of women is enhanced from twenty to twenty-four weeks. Second, the explanation in Section 3 regarding mental health issues caused by failure of contraceptives, substitutes 'any married woman or her husband' to 'any woman or her partner'. This revision paves the way for live-in partners, un-married pregnant couples to undertake abortion which is definitely a progressive step.

Right to abortion based on the principle of choice

The biggest challenge posed by the amendment is that it still doesn't place emphasis on the choice and agency of the woman; rather it prescribes limited medical, psychological and socio-cultural factors that determine whether abortion can be conducted for the woman. State level Medical Boards have been proposed to be set up to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities. If a woman, for whatever reason wants to get an abortion after 24 weeks, and the medical board denies her permission, she can only take recourse through a writ petition in court, which in itself isn't an adequate remedy. The category of women who may be permitted to terminate their pregnancies between 20-24 weeks is unspecified, which are to be delineated in the MTP Rules, arguably a convenient way of usurping powers to determine the category solely by the executive.

The link between discrimination and women's reproductive role is a matter of recurrent concern which has been recognised in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979, (The Convention 1979), to which India is a signatory. The Convention 1979 affirms women's right to reproductive choice.

The Supreme Court of India in the landmark judgment Justice K S Puttaswamy (Retd.), And Anr. Versus Union Of India And Ors. (2017) upheld the decision in Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1 and affirmed the right to bodily autonomy of a woman as a constitutional right, which is an ingredient of personal liberty under Article 21.

Given that right to bodily autonomy is a constitutional right under Article 21, conducting an abortion to one's pregnancy being hinged on the principle of choice over ones own body must be decriminalised, and made accessible for any woman who chooses to abort her pregnancy. In India, it is the lower caste, poor, socio-economically vulnerable women who are the biggest sufferers of criminalisation of abortion. Right to abortion is directly linked to the right to a dignified life, a fundamental right that every woman must be able to access. Destigmatisation of abortion must be a parallel process that the executive engages with, through community-based initiatives. Engaging local governing bodies, women students, health workers and practitioners to create awareness and evidence-based knowledge resources about the importance of the right to abortion and health risks involved in local languages will help trickle the effects of such campaigns down to the most marginalised sections. Investment in health infrastructure, local- level medical staff, and family planning measures through bloc – level initiatives is the only way abortion can be a reality for the Indian woman.

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