With your government’s commitment to women’s empowerment in India, we write with an urgent request for policy clarification and action to address a serious barrier currently faced by women in exercising their reproductive rights.
Since 2016, there have been at least 80 cases where women and girls have had to seek permission from the courts to access abortion. With each court case, there is a growing misconception that judicial permission is needed for abortion—even though no such requirement exists under the Medical Termination of Pregnancy Act, 1971 (MTP Act). We request your good offices to take immediate action to clarify that the law does not require judicial authorization, and issue human rights-based guidance for medical providers in determining whether a woman qualifies for an MTP. These actions are essential to uphold women’s reproductive rights and place decision-making about their health and bodies back in the hands of women and girls in discussion with their own healthcare providers.
The MTP Act allows abortion until 20 weeks on several grounds, but after this point only where necessary to save a pregnant woman’s life under Section 5. As the Center for Reproductive Rights has documented, the majority of legal petitions for MTP are from women or girls—often facing health risks from pregnancies—who were denied MTPs at health facilities because they are beyond 20 weeks of pregnancy. 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.
Although the World Health Organization has found that abortion is one of the safest medical procedures, studies show that unsafe abortion in India is the third leading cause of maternal death and causes 8 women to die each day. Requiring judicial intervention contributes to unsafe abortion by creating barriers to safe services. Once in court, women and girls seeking MTP face delays, public scrutiny, stigma, and repeated invasive exams by unfamiliar doctors on judicially-established medical boards. Because of limited guidance to these boards on factors to consider in authorizing an MTP, many fail to adequately examine the harmful impact of forcing continuation of pregnancy on women and girls. Further, women and girls without financial and legal resources to seek judicial authorization have no recourse but to continue an unwanted pregnancy or risk their lives through unsafe abortion.
The current system jeopardizes the survival and well-being of girls like “Y,” a 10-year-old who became pregnant after being raped. Her family found out when she was over 20 weeks pregnant. Although Y faced grave risks to her health from pregnancy due to her age and medical history, the hospital told her MTP would be illegal. She had to go to the district court and then the Supreme Court, where she was subjected to multiple medical examination and intense media scrutiny. After all of this, she was still denied the termination by court-appointed medical boards who failed to properly consider the risks to her health. Y was told she needed surgery to remove a “large stone” and forced to give birth.
In August 2017, in response to a Supreme Court order, the Ministry of Health and Family Welfare issued a circular that directed each State to establish permanent medical boards to respond to judicial requests to prepare medical reports in MTP authorization cases. While an important recognition of the procedural challenges facing women, the circular does not mention whether medical boards could receive appeals without judicial involvement. Rather, the circular appears to reinforce that women must seek judicial and medical board authorization for all MTPs after 20 weeks. Further, the circular does not lay out any guidance to medical boards, including the importance of considering risks to women if an MTP is denied or of women’s own perception of the gravity of such risks. The impact has been a system of third-party authorization for MTP where women’s own perspectives are marginalized, and a growing number of women being sent to court. Third-party authorizations for abortion violate women’s rights to equality and non-discrimination by creating a barrier to health services only women need. We would urge you to do away with this and instead reaffirm what is in the MTP Act itself—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.
Abortion access is integral to women’s rights to life, health, equality, privacy, and freedom from torture and ill-treatment. The Supreme Court of India has recognized women’s right to reproductive choice as part of the right to personal liberty and recognized decisions around procreation as protected under the right to privacy. Several United Nations bodies have urged India to provide women access to quality and safe abortion services; ensure access to legal abortion in practice; and guarantee respect for adolescents’ views with regard to abortion decisions. Respect for women’s rights require eliminating third-party authorization requirements, and creating regulatory frameworks for abortion that allow for rapid decision-making, ensure women’s opinions are considered, and establish a right to appeal.
Your esteemed office is in an important position to take immediate steps to address this widespread human rights concern. We call for urgent action to increase access to safe abortion at all stages of pregnancy, eliminate unnecessary delays and denials, reduce maternal morbidity and deaths, and empower women and girls. Specifically, we respectfully request your office to:
- 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
- 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.
Every Indian woman should have the autonomy to make decisions about her own body and her sexual and reproductive health, which is essential to her being an empowered and equal citizen. We believe issuing this clarification would be a proactive step towards realizing the government’s agenda to achieve equality, and send a strong signal globally of the government’s commitment to protecting women’s health and rights.
Thank you for your attention and commitment to improving the rights and health of women and girls.