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Right to Safe Abortion

Suchitra Dalvie is Coordinator, The Asia Safe Abortion Partnership.

The case of the 10 year old victim of rape who is pregnant and awaiting delivery after being denied permission to abort by the courts is an urgent indication that all stakeholders must come together and find a solution for unwanted pregnancies which present after 20 weeks.

Even as the 10-year old pregnant girl whose case has been widely reported in the media awaits deli­very in a hospital in Chandigarh, a 12-year old girl in Mumbai has been found to be 27 weeks pregnant. Both are victims of rape by men known to their families. The first was assaulted over seven months by her uncle while in the latter’s case it was a man who worked with her father and rented a room from the family. Incidentally, the child has had surgery perfor­med three years ago at the Postgraduate Insti­tute of Medical Education and Research (PGIMER), in Chandigarh for a hole in the heart. According to the media, the doctors that the family of the first child consulted, had expressed concern over her health given the history of cardiac surgery and also said that the pregnancy would have to be terminated prematurely at 32 weeks since it posed a grave risk to the girl’s physical health if it was allowed to continue beyond that. The family app­roached first the Chandigarh High Court to grant her permission to abort and on being denied approached the Supreme Court. The apex Court asked the medical experts at the Government Medical College and Hospital, Chandigarh to review the case and give their opinion.

Clinical Issues

According to the Indian Academy of Paediatrics chart,1 at the age of 10, an average Indian female child will weigh 30 kg and be 140 cms tall at the 50th percentile. Given that maternal height of less than 145 cm is a predictor for obstructed labour and increases the risk of a bladder wall fistula during vaginal delivery it is not likely that this child can have a vaginal delivery without causing serious trauma to the perineum and pelvic floor muscles. Of course the foetus may also be growth retarded and of a low birth weight but it seems that the delivery will have to be surgical via a caesarean section. This is a major surgery requiring anaesthesia.

According to media reports, on 16 July when the family first approached the high court she was 26 weeks pregnant. At that stage the foetus would have weighed around 760 gm and the termination could have taken place vaginally, using medical abortion pills as per the regimen recommended by the World Health Organisation (WHO 2012) and the Royal College of Obstetricians and Gynaecologists (RCOG 2011) and as analysed in the Cochrane Database (2011).

In itself the abortion would have posed much less risk to the girl than a delivery by surgical intervention in terms of anaesthesia, major abdominal surgery, complications, blood loss and wound healing. What also needs to be taken into account is the child’s history of cardiac surgery which would increase her risk. One of the recommendations was that she should be delivered prematurely at 32 weeks since her body would not be able to sustain a full term pregnancy. Logically, the further one goes in the gestation, the greater the potential for physical risk. The foetus at 32 weeks will weigh on average 1.6 kg and at 38 weeks will be close to three kg.

So the recommendation to wait until 32 weeks seems to have been made from the perspective of the foetus being born after viability rather than the risk to the life of the pregnant girl. After a late term delivery she will also need lactation suppr­ession to stop the breast milk ­production.

Legal Issues

The Medical Termination of Pregnancy (MTP) Act was passed in 1971 based on the recommendations of the Shantilal Shah Committee which was set up to ­review the high number of maternal deaths due to septic abortion. The MTP Act has set a gestation age limit of 20 weeks. However, it does allow the termination of a pregnancy at any time if the opinion is formed, in good faith that this is necessary to save the life of the pregnant woman. Even the clause allowing termination on grounds of grave injury to the pregnant woman’s mental or physical health states that “account may be taken of the pregnant woman’s actual or reasonable foreseeable environment.” The clause on terminating a pregnancy caused by rape gives an explanation which states: “Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”

All these clauses would be applicable in the case of this child. We need to also remember that the MTP law is needed only because the Indian Penal Code (IPC) Sections 312–316 exist and Section 312 states:

Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation: A woman who causes herself to miscarry, is within the meaning of this section.

[By this explanation, every woman who self- medicates using medical abortion pills (even if very safely) is liable for prosecution under the IPC.]

If Sections 312 to 316 were to be ­removed from the IPC then all abortion procedures would be under the purview of medical guidelines similar to the way in which other surgical and medical proce­dures are. India does not have a separate law for open heart surgery or bariatric surgery or endoscopy. These are left to the domains of those who have specialised clinical training. There is no doubt that this brings in issues of self–regulation and accountability by medical professionals but those are in dire need of being addressed beyond the ambit of the abortion service provision alone.

Protection of Children from Sexual Offenses Act

The Protection of Children from Sexual Offenses Act (POCSO) 2012 requires that anyone who is aware of a sexual act ­involving a child less of than 18 years of age must report it to the special juvenile police unit or the local police, failing which they could be imprisoned. My personal communication with many gynaecologists across Maharashtra during mee­­tings led to some issues being raised about the girls who seek consultation for abortion or delivery and are under the age of 18. These are: the difficulty in persuading the family of the underage girl to report to the police, the problems faced by married girls (below 18) and who come in for delivery at full term, those who have had consensual sex and cases wherein the police have blackmailed the family using information in the complaints that are filed. These are concerns that need to be addressed and perhaps some protocols are needed which would help the healthcare providers to help these girls.

Recent Judgements

In April 2016, the Supreme Court all­o­w­ed a 14-year-old rape survivor to abort her 24-week foetus. Allowing her to undergo abortion, the Court observed that the girl would have to live the rest of her life suffering the social stigma associated with the child. Once again in July last year the Supreme Court allowed an abortion at 24 weeks for a pregnancy caused by rape (Ms X v Union of India 2016). Reportedly, fears of fetal abnormality as well as the potential danger to the woman’s life were the reasons cited. On 19 September 2016 the division bench of the Bombay High Court passed a landmark judgment recognising the absolute right of women to abortion (High Court on its own Motion v State of Maharashtra 2016). The MTP Act has always been critiqued for giving all the decision making powers to the doctor and lacking a rights based approach towards women. This judgment makes it apparent that it can be interpreted to mean that women have the right to an abortion and the doctor’s obligation is mainly to ensure that the procedure is followed within the conditions laid down.

The judgment states:

[The] MTP Act bestows a very precious right to a pregnant woman to say no to motherhood. It is the right of a woman to be a mother, so also it is the right of a woman not to be a mother and her wish has to be respected. This right emerges from her human right to live with dignity as a human being in the society and is protected as a fundamental right under Article 21 of the Constitution of India with reasonable restrictions as contemplated under the Act.

……Woman owns her body and has a right over it. Abortion is always a difficult and careful decision and woman alone should be the choice-maker. … unborn foetus cannot be put on a higher pedestal than the right of a living woman. (author’s emphasis ) Indian journal of Medical Ethics 2017

Healthcare Providers

Recent years have witnessed advocacy efforts to extend the gestational limit for pregnancies with foetal abnormalities but there has not been much discussion on finding a solution for unwanted pregnancies which present after 20 weeks. In countries where abortions are allowed beyond 21 weeks, the the process ensures that a live foetus is not born. In India, the training does not currently include either this or a surgical procedure known as dilatation and evacuation (D&E) which is also used for later gestation terminations. The RCOG guidelines (2011) state that

in cases where the fetal abnormality is not lethal or the abortion is not for fetal abnormality and is being undertaken after 21 weeks and 6 days of gestation, failure to perform feticide could result in a live birth and survival, which contradicts the intention of the abortion.

Some doctors quoted by the media on the case of the 10 year old girl said that since the pregnancy had progressed ­beyond 20 weeks they needed to consider the “rights of the unborn child.”

Medical education in India is based on a biomedical curative model that does not include sensitisation or orientation on issues and rights based on gender. A cross sectional survey conducted among medical students in Maharashtra showed that almost a quarter of the respondents considered abortion to be morally wrong, one fifth did not find abortions for unm­a­rried women acceptable and one quarter (incorrectly) believed that a woman needs her partner or spouse’s approval to have an abortion. (Error! Hyperlink reference not valid. Error! Hyperlink reference not valid.2014)

The need of the hour is to have a ­forum or at least discussions among stakeholders around the issues of viability versus choice in order to move the gestational limits in the law. The question that needs to be answered is: At what point does the woman’s right to her own body start to show a declining graph as the foetal viability goes up? While we have not had any formal conscientious objection concerns in India thus far, we need to anticipate the need to put in place guidelines and protocols to guard women’s right to safe abortion.

Public and Private Health Systems

All government facilities have been dee­med as recognised by the MTP Act for provision of abortion services. However, such services continue to be sought mostly in the private sector due to the lack of trained providers and functional equipment in the public sector as well as the much valued confidentiality and non- coercion for contraception in the private sector. (Stillman M et al 2014) A government circular sent out in 2011 to all states asks that medical items and services related to medical abortion should be included in the purchase budget by all public sector hospitals. However, many such hospitals in most states do not have medical abortion pills available on their drug schedule (Stillman M et al 2014). In 2012, in a highly publicised crackdown, the Maharashtra State Food and Drugs Administration took action against the spurious and illegal sales of medical abortion pills. However, this led to the procedure itself getting a negative image. (Times of India 2013)

Again, a seven-member investigating committee headed by the dean of the Government Medical College in Sangli claimed that abortion pills are poison and a “weapon” before suggesting that they should be removed from Schedule H (prescription drugs) and placed in Schedule X (poisons).

The campaigns against sex determination have often engendered anti-abortion imagery with the result that there is a widely held belief that abortion itself is illegal in India. This has created the space for an undercurrent of anti-abortion sentiment. (Economic Times 2014)

Conclusions

Advocacy efforts may be too late for the 10 year old child but all key stakeholders need to take up this case study to come together and discuss the critical domains of future decision making. In India, even now between 9% and 20% of maternal deaths are on account of unsafe abortions.

Safe abortion is not only about terminating an unwanted pregnancy but is also one of the critical life- saving/ life changing episodes in the life cycle of a woman, and part of the continuum of her sexual and reproductive health and rights.

We need to work together with those in allied fields of work to prevent child marriages, prevention of dowry, recognising marital rape, improving the status of the girl child, and all other facets of women’s empowerment. We need to place the conversation around abortion rights within the context of women’s sexuality, patriarchy and gender equality. We need to do better at making the public sector more accountable for providing abortion services and pushing for the private sector to be better regulated. We need to invest in training of health care providers, in the pre-service years and beyond, to ensure gender and rights ­sensitisation.

We need to create a future where it is unacceptable for a girl or a woman to suffer grievous physical or mental harm because she was unable to access a timely, sensitive and safe abortion service.

Note

1 For more information see Error! Hyperlink reference not valid..

References

Cochrane Database Systematic Review (2011): “Medical Methods for Mid-trimester Termination of Pregnancy,” Wildschut H et al, 19 Jan­ua­ry;­(1):CD005216.

Error! Hyperlink reference not valid.Error! Hyperlink reference not valid. “Medical Students’ Attitudes and Perceptions On Abortion: A Cross-sectional Survey Among Medical Interns in ­Maharashtra, India,” Sjogstrom S et al, Error! Hyperlink reference not valid., July, pp 42–46.

Economic Times (2014): Crackdown On Female Foeticide in Maharashtra Creates Shortage of Abortion Pills, 7 September, Error! Hyperlink reference not valid..

High Court on Its Own Motion v The State of Maharashtra, Suo Motu Public Interest Litigation (2016): No 1 of 2016, Judgment dated 20.9.2016.

Indian Journal of Medical Ethics (2017): Abortion Rights Judgment: A Ray of Hope! Johari V, Jadhav U, 28 February 2017, Error! Hyperlink reference not valid..

Ms X v Union of India, In the Supreme Court of India, Writ Petition (C)No 593 of 2016, vide order dated 25.7.2016.

Royal College of Obstetricians and Gynaecologists (2011): The Care of Women Requesting Indu­c­e­d Abortion, Evidence Based Clinical Guideline No 7, Error! Hyperlink reference not valid., pp 68–75.

Stillman M et al (2014): “Abortion in India: A Literature Review,” December Error! Hyperlink reference not valid..

Times of India (2013): “State Driving Abortion Pills Out of Market by Iyer M,” 25 April 2013  Error! Hyperlink reference not valid..

World Health Organization (2012): Safe Abortion Technical and Policy Guidance for Health Systems 2012, pp 38–40, Error! Hyperlink reference not valid..

Updated On : 18th Aug, 2017

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