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50 years and glass still half full: MTP Amendment Act still a far cry from inclusive and progressive

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Debanjana Choudhuri
Debanjana Choudhuri
Debanjana is a vocal SRHR advocate working on gender rights and climate justice for the past 17 years. She has been awarded the Women in Corporate Allies Award 2020 by Women’s Web for her work towards inclusion, diversity and advocacy during the pandemic. She is passionate about working at cross sections towards realising the SDGs and works with various stakeholders in the SRHR and climate justice spaces. She is also a travel enthusiast, loves to advocate by harnessing the power of storytelling and a former journalist who has worked with various news houses in India.

In its 50 years of existence, the Medical Termination of Pregnancy Act has been amended only twice, once in 2002 and now recently in 2021. In the meantime there has been remarkable progress in medical technology – availability of safe and simple technologies for safe abortion like manual vacuum aspiration and medical drugs; diagnostics that help identify severe foetal anomalies closer to and after 20 weeks gestation.

Apart from advances in medical technology, understanding and appreciation of the need for women to have complete control over their bodies has increased, as evidenced by several progressive judgements in India and international conventions commitments (such as Puttaswamy judgment of the Supreme Court, Anil Kumar Malhotra v Ajay Pasricha, Suchita Srivastava v Chandigarh Admin and international platforms like Convention on Elimination of All forms of Discrimination against Women, International Conference on Population and Development).

There was great expectation that the amendments to the MTP Act would truly make it contemporary and progressive, establishing India’s leadership in setting the global agenda on a sensitive subject. While what has been amended is a step ahead from the 1971’s Act; it still is a far cry from being truly inclusive  and this is just the tip of the iceberg, larger issue of access to safe abortion care and women’s rights remains largely untouched. 

The true measure of success of the amendments is implementation, and how it is able to bridge access gaps. Merely legalising abortion does not guarantee accessibility or necessarily translates into access. A lot of work remains to be done in terms of access, rights based approach, telemedicine and task sharing.

Pratigya reports on ‘Role of Judiciary in access to safe abortion’ done previously point out the failure of the legal system to address what is a matter of human rights. In this regard, we find it imperative to address the judiciary’s responsibility in furthering the access to safe abortion. The analysis of 194 writ petitions (full version available for download on https://pratigyacampaign.org/research-and-publications/) heard by the Supreme Court and the High Courts between June 2016 and April 2019, filed by women seeking to have their pregnancy medically terminated, identified several systemic issues leading to unpredictable, varied and inconsistent outcomes. The length of the gestation period and the opinion of the medical boards were common themes in cases of rejection. Neither factor considers the petitioner’s medical report or the impact on the woman beyond the subjective interpretation of the Act.

Similarly, the reports on availability of medical abortion drugs done by Pratigya Campaign in the past shows that unavailability of Medical Abortion (MA) pills legally in the market is doing much disservice to pregnant persons. Sadly, overregulation led by a misplaced understanding that reducing access to MA drugs will help arrest the declining child sex ratio contributes massively towards the access barriers. MA drugs are indicated for use up to nine weeks gestation. Sex determination, using the most common and affordable diagnostic tool – ultra sonography, is not possible during this period. Ultra sound can determine the sex of the foetus only at 13-14 weeks (early second trimester).

An overwhelming majority of abortions in India, estimated upwards of 85% occur in the first trimester. Women’s right and access to abortion, which the MTP Act enables, has somehow become entangled in the fight against gender-biased sex selection. As a result, chemists claim they face additional scrutiny if they stock MA drugs. They are informally told not to sell MA drugs, keep copies of prescriptions and in some cases, keep track of the identity of the purchaser- a clear violation of the MTP Act which assures women confidentiality. The reports show that MA drugs are overregulated compared to all Schedule H drugs, and much has to do with the misconceptions over gender biased sex selection. There is an urgent need to clear the prevailing misunderstanding among drug regulators and health officials about MA drugs and sex selection, so that abortion pills are treated just like any other schedule H drug and are not singled out for additional scrutiny. 

Meanwhile, the past year and half has been nothing short of a hellish experience for abortion seekers in the country! With facilities becoming dedicated COVID facilities, providers unavailable to provide services and unavailability of MA drugs, the situation for an abortion seeker currently is no less than a nightmare. Though abortion is notified as an ‘essential service’ the gap between providers and abortion seekers is much wider now than ever! Pratigya campaign has attempted to bridge the gap by populating a database of approved MTP providers so that pregnant persons can connect to a verified provider. The database since its inception in late 2020, has been accessed by over 2000 people and most have been flooding queries about where to consult and whom to consult.

There is an urgent need to look into the Rules and Regulations of the MTP Amendment Act from a fresh perspective and ensure that the opportunity that Rules and Regulations pose, are not missed this time around. There is an immediate need to address task sharing, expanding the provider base and address access gaps.

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Debanjana Choudhuri
Debanjana Choudhuri
Debanjana is a vocal SRHR advocate working on gender rights and climate justice for the past 17 years. She has been awarded the Women in Corporate Allies Award 2020 by Women’s Web for her work towards inclusion, diversity and advocacy during the pandemic. She is passionate about working at cross sections towards realising the SDGs and works with various stakeholders in the SRHR and climate justice spaces. She is also a travel enthusiast, loves to advocate by harnessing the power of storytelling and a former journalist who has worked with various news houses in India.
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