In India, legal reforms related to reproductive rights have been in progress for some time. In 2021, the Medical Termination of Pregnancy (MTP) Act 1971, which had previously restricted safe and legal abortions to married women, was amended to include unmarried women. On 29 September 2022, the Supreme Court of India passed a judgement that guaranteed all women, regardless of their marital status, the right to undergo abortions up to 24 weeks into their pregnancy up from 21 weeks.
For adolescent pregnancies, the judgment states that it is no longer mandatory for a doctor to disclose the name and identity of a girl minor to the police, allowing underaged girls to abort pregnancies arising from consensual sex anonymously. According to the Supreme Court, the decision to continue or terminate a pregnancy is rooted in a woman’s right to bodily autonomy and choosing the course of her own life.
While this is a significant step towards safeguarding reproductive autonomy, there is more to be done for the translation of legislation into impactful outcomes. A major hindrance arises in the form of conflation with existing allied laws. Indian society is not alien to son preference and female foeticide is rampant.
Legislation has been put in place over the years to prohibit sex-selective abortions. The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act 1994 was enacted to combat skewed sex ratios, with the objective of banning sex selective abortions and stopping female foeticides. The PCPNDT Act has been exploited by several ‘pro-life’ organisations of different religious affiliations for creating public support against abortions. There is also evidence of medical practitioners shying away from performing abortions for fear of negative media publicity, defamation and criminal charges. It is ironic that the PCPNDT Act, which resulted from women’s rights movements, has become a hindrance to accessing safe abortions.
An important step in realising the outcomes of legal judgements is removing informal barriers. A major hurdle to accessing safe and legal abortions, particularly for unmarried women, is the discrimination they face within the healthcare system.
While the judgement urges medical practitioners to not levy extra-legal conditions on women who seek abortions, the inhibitions of providers have led to the denial of these services. Several reports have surfaced of women being denied abortion on moral grounds by doctors or being asked to bring along their partners or parents when undergoing the procedure.
Accessing safe and legal abortions is even more complicated for women from marginalised communities. Abortion in government health facilities is often conditional on undergoing sterilisation. Studies across different states of India have shown that medical practitioners often harbour negative attitudes and biases towards providing unconditional abortions, especially to unaccompanied, divorced or widowed women.
Transgender and non-binary persons have largely been left out of the discourse on abortions and reproductive rights. Therefore, the Supreme Court judgement is also important for its inclusion of non-cis gender women.
While the Supreme Court’s decision is laudable, the language of the law still uses ‘woman’, albeit in a manner inclusive of persons other than cis-gender women. This implies that transgender and non-binary people who might require abortions and reproductive healthcare are still ‘women’, which violates the right to a person’s self-determination of their gender identity and expression.
Unfortunately, the Indian healthcare system at large operates under the gender binary. Studies have found that transgender and non-binary people are often refused medical treatment and postpone medical care to avoid harassment and disrespect.
While the abortion ruling in India is a step in the right direction, there is a long road ahead. Access to safe abortions forms part of the right to healthcare as upheld in the International Covenant on Economic, Social, and Cultural Rights and must be legally guaranteed. Legal reforms must be accompanied by the education of healthcare providers on safe abortions from a gender-inclusive and a rights-based perspective, especially abortions for adolescents, unmarried women, transgender and non-binary persons. The legislation must also ensure that every public hospital has a doctor on duty who is willing to perform abortions at all times.
Legislation can pave the way for increased acceptance of changes in societal values and norms. Accepting consensual pre-marital sex and thinking beyond the gender-binary are imperative in achieving an inclusive future for reproductive rights.
For a vast and diverse country like India, where accountability of healthcare service providers is often missing, legal recourse against mistreatment can be a long and futile exercise. It is essential to bring about changes simultaneously within these larger systems, which can yield more effective policy implementation.
Niharika Rustagi is Doctoral Candidate at the Lee Kuan Yew School of Public Policy, National University of Singapore.
Kaushambi Bagchi is Doctoral Candidate at the Lee Kuan Yew School of Public Policy, National University of Singapore.