India's abortion law still lacks a rights-based approach, gynecologist says

Dr. Suchitra Dalvie: We do safe abortion rights advocacy with young people and health care providers in 25 countries. We train and mentor them to understand where one locates safe abortion rights within the context of gender and sexuality, as well as human rights. We then build their capacity to be able to have the right facts and arguments to advocate for safe abortion laws, whether it is with the community-level policymakers or those who are drafting the law. And the reason we locate it within the whole spectrum of gender and rights is because in our experience, when you isolate safe abortion as a separate issue, it gets labeled either as a women's issue or not an important enough issue. 

So as a gynecologist, honestly, I didn't realize for many years, safe abortion rights are really at the very core of the whole fight of feminism, autonomy, agency and dismantling the patriarchy in many, many ways. At the time that I was doing my residency, which was much before social media, we had no access even sometimes to the language. In retrospect, it sounds funny, but I didn't even know the words "misogyny" and "patriarchy" because they were just not part of the lexicon at that point. But I was actually performing a role within the patriarchy in a fairly misogynistic way because that's the way the medical system functions, particularly in India, where, in those days, there was so much of a focus on contraception and family planning. Unmarried girls having abortions were treated fairly badly.

I used to feel very uncomfortable, but there was really no space for these conversations of questioning. And that stayed with me. Later on, I worked with the Family Planning Association of India, which is an affiliate of the International Planned Parenthood Federation. And as a result of the work with FPAI, I was exposed to a very rich and very varied sort of understanding of what are the lived realities of these women. I recognized that when you really unpack the various layers of patriarchy, all the oppressive frameworks of patriarchy, the core of it really is the need to control women's sexuality. Because unless you can make sure that a particular woman has sex only with her husband, and that too, only after marriage, there was no way in the earlier days to ensure that the son she bears is that of the man.

Right from the high premium on virginity before marriage, to the kinds of controls on women's mobility on their work, on their education, the entire focus is to make sure that you're a good wife, and therefore, eventually, a good mother. And in the context of some countries like India, Nepal, Vietnam and China, the whole sex ratio issue is not just about being a mother, it's about being a mother to a son. I realized that the reason why abortion is so stigmatized, controlled and even criminalized, is because if a woman is able to terminate an unwanted pregnancy without consequences she's basically like a man! She can have sex without the fear of pregnancy. And that frees up women to such an extent that then why would they accept the shackles of anything else? Why would marriage be the only reason to do anything when you can have children whenever you want, whenever you don't want?

I realized that that was really the essence of the controls of patriarchy, to make sure a particular woman becomes a mother for the children of a particular man. And that's all that my role is.​​​​​ So, that's kind of how I initially drifted toward it, but then realized that this is what I wanted to work on. So, once I left my work at FPA, I was part of a group of people who co-founded the issue of safe abortion partnership. This was in 2008, at a point where there was very little conversation happening around it, although medical abortion pills were already available, but not being spoken about. So, many of us who came together, quite a few doctors, but many were not. There were legal professionals that were journalists, there were theater people, whoever was interested in working on safe abortion rights. From that time utill now, the work has really grown. It's become what I like to say movement building. 

In many ways, India is actually quite well off in terms of the abortion law. The Medical Termination of Pregnancy Act [MTP] was first passed in 1971, and amended again in 2021. The core points are that abortion is allowed, under certain circumstances, up to 20 weeks, and now up to 24 weeks, if it is done by a registered medical practitioner — defined as someone who's done gynecology in a particular way — in a place which has been authorized by the government. A woman can terminate a pregnancy if the pregnancy will save the life of the woman. Or if a pregnancy is caused due to rape or incest because continuing such a pregnancy is a high risk to the woman's mental health.

Considering it was drafted in the 1960s, it's quite a broad sweep, a lot of things could fit into mental health. And it's allowed if there is any "fetal abnormality." I'm using the words as quoted from the law, and it is very ableist.And the most important clause, in practice, is that a woman who gets pregnant despite having used contraception can get an abortion. Earlier, it said "a married woman and her husband." The recent amendment has removed the word "marriage." So, it just says "women," which, in a sense, really opens it up because the entire act is supposed to be implemented in good faith.

So, legally speaking, if I am a pro-choice doctor who's supportive, it's very open for me to be able to help anyone; as long as you're above the age of 18, there is no burden of proof. If you're below 18, then all other issues come into place. But although this sounds liberal and amazing, the reality is that about 70% of all abortions in India are happening through medical abortion pills, which are mostly being self-used. So, these are not necessarily prescriptions that are being given by doctors but women who are managing to access and use it themselves.

They're obviously doing it safely because maternal mortality rate, if anything, has gone down in the last five years, but the fact remains is this is in contravention of the medical termination of pregnancy act because the woman is not licensed as a service provider to herself. So, in many ways the MTP, although it covers a large sweep of canvas, unless we decriminalize it from the Indian penal code, we can't really say that women have the right to safe abortion in India.

The problem is that a lot of people don't know that the MTP act exists. There is a general background stigma around abortion because of course, in our society, motherhood is so glorified; infertility is stigmatized; abortion is stigmatized. Many women assume that because no one talks about it, and there are no big posters and that there is no public information available that it's probably not legal. On the backdrop of that, in the last two decades, we also had this huge explosion of material talking about being against sex determination, saying, "Don't kill the poor, innocent girl child in the womb."

Now, when you translate that into local language, you can't really juxtapose a message next to it saying, "But by the way, abortions are legal in the country." A lot of women genuinely believe that all abortions are illegal. And this is something which has come out in repeated studies — not only women in the community — but community health workers approved by the government also genuinely believe that most abortions are illlegal. Many people feel that abortions for unmarried girls are actually OK. Why? Because it will help her in her future marriage prospects.

So, you see, it's never about women. And even the whole "Save the Girl Child" campaign, if you really unpack it, and I have a selection of some very interesting posters, one which was endorsed by the government at the time — there is this cricketer, an army field marshal, somebody who's playing a musical instrument. And the headline says, "Where would you be if your mother was aborted?" So, if your grandmother had aborted your mother, how would these illustrious men of India be born? So, the woman's role is only as a conduit for these illustrious men. 

Finding out whether you are going to have a female child or making sure you have a female child during IVF [in-vitro fertizlization] or through the lab is what is prohibited because the assumption is if you know it's a female child, you're going to go ahead and have an abortion. So, when you've got police and authorities and somebody doing a raid on an ultrasound clinic or gynecology clinic, the message that goes out in the community is that something illegal is happening there, which means probably also that abortion is illegal. This is why people go to illegal places in the informal sector and risk their health and even their life because they are not aware of how to access it in a legal and safe way. 

Just to clarify, the iPill is an emergency contraception pill — it's not the abortion pill. It has to be taken within 72 hours to prevent conception, prevent a pregnancy. But if you've seen any of those ads in detail, the way they positioned it was, "Abortion is so terrible, please have the iPill." As per the FDA approval in India, it is available over the counter. The medical abortion pill, on the other hand, which has been approved and registered, is marketed as a combination pack of two different pills. There's mifepristone and misoprostol. That is not supposed to be available over the counter, but it has become freely available.

That is illegal in the strictest sense, but it's not unsafe. ​​​​​​It's safer than what women have been doing for illegal abortions so far. In fact, the MTP act was drafted by the Shanti Lal Shah commission, who were actually appointed to review the very, very high rate of maternal mortality in India in the 1960s. And they toured the country for about two or three years, and found out that the largest number of deaths were being caused by what was then called septic abortions. Because women who didn't want any more pregnancies — but had no way of either preventing or not continuing — would put in a stick or a twig which was dipped in poison or something, doing hot stone massages, falling, jumping off the stairs, all kinds of horrible things on the assumption that if you shock your body enough, it's going to sort of release the pregnancy, which would lead to very horrific internal injuries and very often death, as well.

There are so many reasons people want to terminate a pregnancy. Especially in cases of premarital or extramarital relationships, just the growing pregnancy is something you can't hide, beyond a point. And there are serious consequences for the women. A lot of the so-called "honor killings" happen because of this. Women will commit suicide. So, there is a risk of death for the woman whether she tries an unsafe abortion or not. In that context, if you're able to take a medical abortion pill and procure an abortion safely, good for them, I say. 

Absolutely. But it's not that black and white. The FDA's role is to make sure that medicines are prescribed and sold as per whatever the law and regulations. But, how often have you heard of them doing raids for anything else? I mean, do we really think that in the whole of India, the medical abortion pill is the only one which is being sold without a prescription? I was part of a study a long time back; we did a value chain analysis, and we interviewed quite a few pharmacists about this. And their logic was, "Oh, abortion pills are being misused." So, I said, "OK, how?" They said: "There are all these young women, they're not married, they just have sex, and then they just buy the pill." So, I said, "OK, so just help me here. They're using an abortion pill to get an abortion.

So, can I understand what the misuse is? You're making it sound like they're using TB drugs to actually get an abortion." Their response was, "No, no, if you make abortions too easy, then India ka kya hoga ... 'what will happen to India?'" So, the "too easy" part of it is what bothers people because you want the women to have the suffering and the punishment of having had sex outside of the rules of the patriarchy. If you make it too easy, then what's left? There's nothing to control. The FDA, the sting operations, the everything, everything is just — you just see the tip of the whole patriarchy is pushing the whole thing. 

A lot depends on your social capital. Who do you know who knows these things? Because this isn't easily available as information. In a rural setting, if you're aware, you have an ASHA [community health worker] or if you're aware that there's a clinic nearby, you may access the clinic. This will work if you're a married person who already has children because you fit within the norm of who they want to see in the clinic. If you are unmarried, you are not likely to go anywhere openly, you will then ask around to some kind of underground social network. Then you may be guided to someone, say: "My uncle's friend who is working in a pharmacy shop." So, then there's always a little black market and exploitation, you may find the retail price is around 500 rupees [$6.40] "but we will get it for you if you give us 2,000 rupees [$26]."

You may actually find that you have crossed the limit of what you can do with pills, you may need to have somebody do it surgically, with anesthesia, what we call an evacuation of the uterus. In which case, if you have the money, that's great, becase it will cost a lot in a private clinic. And in the public sector, you may or may not get it. ​​​​​But if you're desperate enough to want it, and you don't really want to be treated with all your rights and dignity intact, then you're fine to go and get it done there. The iPill ads are everywhere. Where are the MTP posters? It's a law of the land, the government facilities are all deemed to recognize. You don't see large posters everywhere, you see massive posters saying, "Save the Girl Child." What about saving this adult woman who's carrying this pregnancy?

In terms of the amendments that were made in 2021, some of them are interesting insomuch as I think they mean well, but they are a little too superficial to actually make a genuine difference. The one which really works is removing the word married because it at least takes away the control that some not very pro-choice doctors have used in the past to not offer abortions to women. Because again, just because there's a law doesn't mean all gynecologists are pro-choice. There are so many who say, "Oh, well, you're married! Or have the first child and come to me for the second." Increasing the gestational age from 20 to 24 [weeks] happened after a long series of court cases, and I'm not really sure it's necessarily a good thing, because the increase of those four weeks is specifically identified as for certain categories of vulnerable women: survivors of rape, or incest or having a disability. The problem with that is, again, it's paternalistic. You have to have suffered somehow to be eligible for it. And I've heard this said very often in many of these meetings, "Oh, but they deserve the abortion."

So, a woman has to actually deserve an abortion, which is very problematic because it shifts you from the rights-based conversation. Who has to decide that a certain type of woman is vulnerable? Anyone can be vulnerable. And the other thing they have done is actually removed any gestational limit if the fetus has a serious disability — which is so problematic because it is so ablest. The assumption is that you don't want a fetus with disability to be born. I would have still been OK with it if the framing was the person may not want to raise a child with these disabilities because of a lack of capacity or the desire or whatever. But, it's still not about the woman, it's because you don't want the fetus with disability to be born. So, it's the same as the sex-ratio problem. Rather than creating a society where the girl child is as wanted as the boy child, which has all your economic, political implications, you want to make sure the girl child is born only to service the men.

Similarly, rather than saying, "Let's create a society where disability is not an issue," they say, "Let's definitely end and eliminate those weaknesses." And to decide, there's a whole medical board which will sit there: one gynecologist, one radiologist or pediatrician, someone other specialist, some NGO [nongovernmental] representative. I have to ask, is this "Who wants to be a millionaire?" Like, the whole audience will vote and then you decide? Who are you to tell her whether she should continue the pregnancy or not? It depends on so many things, your socioeconomic status, your capacity, whether your husband is supportive or not. ​​​​​We've had horrifying stories. One time, a man got his wife to the hospital. She'd been in labor for a long time and she wasn't delivering, and they said, "She needs a Cesarean section, but you'll have to now take a vehicle and go somewhere else because we don't have facility here."

In this terrain, that taxi was going to cost him something like 8,000 rupees [$103]. And apparently, he basically calculated all that and said, "If I have to pay this money, I will have to sell my buffalo. If I sell my buffalo, what will we eat? If she dies, I will get another wife." Literally he has said this. And of course, she died because there was no way to save her. But this was his calculation. Now, I understand it's horrific to do this. But his livelihood depends on the buffalo; the woman is dispensable. This is the reality of our society and where women's life is placed in the whole hierarchy of things. Which is why it's very problematic when you make superficial claims and say, "Oh, the government gave women of India the Amended MTP act in March 2021." But what was the intent behind it? It is still not a rights-based approach. You're either a victim, or you are ableist. Or you are somehow going into the whole eugenic, patriarchal mindset, which is, to me, seriously problematic in 2022. ​​​​​

These amendments are minor improvements. That they removed the word married is excellent. But considering that we've already passed the transgender bill, they could have said, "person" also, but it still says "woman." So, little things which could have been done also haven't because there is no holistic rights-based approach behind this. The law has really provided every possible facility for privacy, confidentiality, autonomy within the extent of whatever is approved. That's not the practical reality. But we are still better off than many other countries. I must say that at least there is a law, there are quite a wide range of provisions, even though they are not rights-based.