Indian Women Need Court’s Permission For Abortions?

Representational image
Representational imageNARINDER NANU AFP / Getty Images

Indian women and girls have the right to make decisions about their own bodies when it comes to the termination of pregnancies under the Medical Termination of Pregnancy Act, 1971 (MTP Act). However, studies have found that despite the law, since 2016 there have been at least 80 cases where women and girls have been made to go to court to seek permission – judicial authorisation – before undergoing any procedure, despite the fact that no such requirement exists under the MTP.

As per the MTP act, women and girls have the right abortions until 20 weeks of gestation and after this point, it is only when necessary to save the woman’s life under Section 5, a point that the Centre for Reproductive Rights and Pratigya point out in their petition to the Health Minister. They note that this growing trend of seeking courts permission before having an abortion is not only denying women their right but also forcing them to face public scrutiny, stigma, repeated invasive examinations, leaving them open to public shaming considering the stigma that exists around sex, sexuality, especially female sexuality in India. This drives women to seek out incredibly unsafe illegal abortion methods or carry through term despite their desire not to.

The Centre for Reproductive Rights and Pratigya point to a grave problem, stating, “The judiciary has permitted MTP in some cases of health risks after 20 weeks. However, they have not issued any guidance clarifying when MTP is allowed after this point, and instead largely deferred to the opinion of court-appointed medical boards. Alarmingly, this study also found that pregnant women and girls before 20 weeks of gestation are increasingly being sent to seek judicial authorization for MTP, even in cases where the law clearly permits abortion.”

In response to a Supreme Court order in 2017, the Ministry of Health and Family Welfare issues a directive to each State to establish permanent medical boards that would respond to judicial requests to prepare medical reports in any MTP authorisation cases. While this put in place the procedure, it didn’t specify whether the boards’ decisions can be appealed without involving the judiciary, nor does it provide guidance as such for the functioning and decision making power that the boards have, including taking into considering the risks to women after the denial of MTP or her own understanding of these risks.

The two organisations are urging the Union Minister of Health and Family Welfare, Jagat Prakash Nadda to clarify and reaffirm to everyone involved what exactly the Act itself entails – “that a woman’s doctor can provide an MTP under Section 5 where in his or her good faith medical opinion it is required to save her life.”

They’re calling to the government to take immediate action when it comes to these concerns to women’s lives by eliminating these unnecessary judicial delays and denials and increasing safe abortion accessibility for all women. Their two specific demands are as follows:

-1) Issue a circular clarifying that the August 2017 circular on the establishment of medical boards does not create a requirement of judicial authorizations for MTP at any stage; and

2) Introduce guidelines that establish a human rights-based procedural framework for medical providers in giving medical opinions as required under the MTP Act at all stages of pregnancy that is (1) time sensitive and (2) women-centric, including clarifying the importance of considering women’s and girls’ own perceptions of risk to their physical or mental health or lives from continuation of pregnancy.

You can read the organisations’ petition and letter to the Minister in full here and add your name to demand the safety of reproductive rights for women and girls across the country.