A stitch in time

Amending the abortion law can remove many hurdles


Geetanjali Minhas | January 16, 2019 | Mumbai

#Bombay high court   #WHO   #Medical Termination of Pregnancy Act   #child birth   #abortion law   #Abortion  

After giving birth to two children, Sheila (name changed), a 32-year-old resident of Shahapur in Thane, Maharashtra, decided to get herself sterilised. In 2013, some workers of a primary health centre (PHC) told her about a sterilisation camp 30 km away in Saralgaon, in her mother’s village. She did not tell her husband or his parents about it and went for it alone. The camp was overcrowded and her waiting number was 105. She was told to come the next day at 7 am. The next day, a health worker gave her a painkiller injection. Then her travails began.

Sheila recalls: “All of us were wearing just petticoats and blouses. We were asked to stand in a line. We waited till 5.30 pm when a doctor came to perform the procedure. The effect of the injection given in the morning had gone and it was very painful to undergo the procedure. Later, all of us were told to lie down on the floor on a mat for 15-20 minutes; some were even discharged immediately. After two hours even the doctor left.” 

“With advancement in technology, abortion is the safest medical procedure. ... Despite this new technology we have not been successful in providing women safe access to abortion and let them down.”

Dr Nozer Sheriar
Consultant, Breach Candy Hospital, Mumbai

“Only a handful of women have been able to get permissions from the court. A vast majority is unable to access the legal system and is not accessing safe and legal abortion services.”

Anubha Rastogi
Advocate and women’s rights activist

Still, she felt relieved and confident.  She was mistaken. A year later, Sheila was pregnant again. Sheila was confused and angry. She could not afford another child. Due to social stigma attached to abortion, she hid her pregnancy from her husband and went alone to a sterilisation camp in Murbad, some 42 km away. “They gave me an injection and took me to the operation table. The doctors said that I was pregnant, so they will only do ‘safai’ [abortion],” she says. But before that they asked for my sonography report. As there was no sonography centre in Murbad, Sheila had to travel 55 km to Vashi. After checking her reports the doctors at Murbad conducted abortion. 
Sheila, however, was still waiting for sterilisation. A few months later, she went to a Family Planning India Centre at Kalyan, where she was finally sterilised. Frustrated with the negligent and abysmal attitude at government healthcare centres, Sheila wanted to file a case against them for shoddy services. But she decided otherwise, as filing a case would mean she would have to disclose her pregnancy, abortion and sterilisation to her husband. “Women go to such camps because the government provides them incentive for sterilisation. It took me two years to get myself sterilised. The health camps I went to lacked basic facilities like clean mattresses and operation gowns. There was no privacy and post-operation care for women. Poor women cannot afford private doctors and they have to suffer difficulties to access public healthcare,” says Sheila.

A brief history
The Medical Termination of Pregnancy (MTP) Act, 1971, made abortion legal in India. Yet a majority of women from rural areas and marginalised backgrounds, like Sheila, struggle to get a safe abortion. Lack of awareness and information about the law and processes, travelling long distances to reach health centres (where safe abortion services are not available due to shortage of trained staff and inadequate equipment and medicine supplies), stigma related to abortion itself and lack of privacy are some of the roadblocks. Going to a private clinic is too costly for many. 
The way out
There are legal provisions to ensure safe abortion, but their implementation is often botched up. Some clauses are restrictive. By law, pregnancies can be terminated only at a government clinic (for free) or at registered hospitals (for a fee). Since government hospital services are usually pathetic, most women go to private clinics. Besides, government hospitals often insist that women undergo sterilisation to get abortions done free. Private clinics, many of them unregistered, are rampant in small towns and rural areas. They make a killing by offering sleazy anonymity.
In 2003 India allowed abortion through pills until seven weeks of gestation. However, medical abortion (MA) pills are not in widespread use in the public health system that reaches village level. They are available only in towns and cities. Women commonly obtain these from pharmacists, chemists and informal vendors with inaccurate or no information.
Also, most PHCs lack adequate and trained staff. With approximately 9-10 lakh MBBS doctors across specialities, the country has an estimated 60,000 gynaecologists, says Dr Nozer Sheriar, consultant, Breach Candy and Hinduja Healthcare Hospitals, Mumbai. According to the World Health Organisation (WHO), global deficiency of skilled healthcare professionals will reach 12.9 million by 2035 and such shortages are critical in regions with high burden of unsafe abortion and related mortality.  
Unsafe abortion is the third leading cause of maternal deaths in the country. As per the ministry of health and family welfare, safe abortion services coupled with increase in family planning services can save India a whopping Rs 6,500 crore besides preventing maternal and infant deaths. 
An expert committee of multiple stakeholders – ministries, professional organisations, NGOs, doctors and nurses – have called for amendments in the law. They recommend: 
1) Abortion at the request of a woman until 12 weeks
2) Increasing the gestation limit from 20 weeks to 24 weeks for rape survivors
3) Removing the gestation limit in case of foetal abnormalities
4) Reducing the number of physician opinions required from two to one in second trimester
5) Expanding the base of legal medical abortion providers to include qualified nurses and doctors practising alternative systems of medicine like Ayurveda, Unani, Siddha, and Homeopathy (‘Ayush’) 
6) Removing the word ‘married’ from the clause on contraceptive failure as a condition for seeking abortion  
The expert committee worked on these recommendations from 2006 to 2010. The health ministry put the recommendations in public domain for feedback in 2014. The proposed amendments faced opposition, particularly from the Indian Medical Association (IMA) and Federation of Obstetric and Gynaecological Societies of India (FOGSI). Ironically, FOGSI had earlier championed the case of mid-level providers. The process for amending the MTP Act is under way. 
“As many as 85 percent abortions take place in the first trimester and 83 percent of the combined first and second trimesters abortions are MA. With majority MA happening in the first trimester, that is, within first seven weeks and before nine weeks of the pregnancy, these can be easily done by a knowledge-based skilled trainer,” says Dr Sheriar, who was also the secretary general of FOGSI and was part of the expert committee. 
“With many countries allowing mid-level providers to do surgical procedures, the committee had primarily recommended that mid-level providers be allowed only to do MA, which would account for majority of women with supervised access,” he says. 
“Most abortions that happen in public sector come with judgement, diktats and arm twisting. The proposals [for amendments] look at the Act from women’s perspective, so that she does not have to justify before the doctor a first trimester MTP. We need to bring other doctors and specialists for women as we are speaking of 15.6 million abortions that are going to take place whether we allow it or not,” he adds.
Critical of the opposition, Dr Sheriar says that a few professionals are trying to block access for women without giving them an alternative. “Are these expert groups guaranteeing that MBBS and trained doctors will deliver services? Will they go to villages which is where these women will probably have to get their access? Even as it remains a turf war, both systems allow providers where no doctors are available to provide emergency obstetrics care, allow allopathic drugs to a woman who is having convulsions or pregnant with severe hypertension. The medical curriculum has to address these and change,” he says. 
He says that mid-level providers like nurses and alternative medicine practitioners have proved safe and effective, and they are available at the last mile. These people will be trained, registered, and formalised into the system. In 2003-04, FOGSI did a pilot project along with the central government and WHO on Manual Vacuum Aspiration (MVA), a simplified form of surgical abortion for pregnancies up to 12-14 weeks of gestation. Under the project, MBBS doctors who had never done an abortion were trained to do MVA.
“With advancement in technology, abortion is the safest medical procedure. MA in India has been a game-changer. Despite this new technology we have not been successful in providing women safe access to abortion and let them down. I believe availability of MA and MVA and the fact that women themselves started accessing abortion as compared to life threatening available options like going to unskilled providers are the facts responsible for bringing down abortion related deaths from 12 percent in 2002 to eight percent in 2008,” says Dr Sheriar.
Cases of late abortion  
The last decade saw many women including rape survivors, minors with unwanted pregnancies and others with severe foetal abnormalities approaching courts. At least 23 such cases reached the supreme court. Thirty-five cases were filed in the Bombay high court till February 2018, and the number has gone up to 50 now. As such cases increase by the week, the court verdict has been inconsistent. For late abortions, the proposed amendment says that in case of foetal defects the government should come out with a gazetted list of defects so that the woman does not has to approach the court to seek permission for termination at any point in pregnancy.
Governance Now spoke to a number of doctors who all were of the view that, though the law does not allow abortion beyond 20 weeks, there is indeed a case for it in abnormal pregnancies. 
Dr Ashok Anand, professor, department of obstetrics and gynaecology, Grant Government Medical College and Sir JJ Group of Hospitals, says that around 2-2.5 percent of the pregnancies are abnormal with congenital malformations. These anomalies are recognised best after 20 weeks and around 24-26 weeks of gestation with a congenital baby scan. When the mother gets the report and goes to the obstetrician, gestation progresses further. 

How other laws come in the way of abortion law

Amendments were introduced in 2003 to the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) Act of 1994, to regulate the technology for prenatal sex determination and prohibit misuse of prenatal diagnostic tests. It has no cross-referencing or conflict with the abortion law (MTP). While nine percent of all abortions are sex selective, 85 percent are first trimester abortions where sex determination is impossible, as per the National Health Mission. However, due to limited understanding and awareness of the PCPNDT Act and misconceptions around abortion being illegal, authorities have been targeting abortions for being sex selective. Inspection officials often crack down on registered abortion centres and providers. As a result, many qualified practitioners deny abortion services (especially during the second trimester) and medical abortion drugs. Women are then forced to resort to unsafe methods.

“A few hundred thousand sex-related abortions are threatening the availability [of abortion services] to all the women,” says Dr Sheriar. He is among the authors of the 2015 government report, ‘Unintended Pregnancy and Abortion in India’, and has urged to stop the conflation between MTP and PCPNDT laws.

POCSO Act, 2012 aims to protect children less than 18 years of age from sexual abuse and violence. In India, 40-45 percent of women are married off before they turn 18 but the age of consent has been raised from 16 to 18. Abortions in such cases have to be reported to the police for the married and unmarried women alike. Under the POCSO Act, a private doctor performing an abortion without informing the police may land in jail. This creates a hindrance for the girl and the family.

A healthcare practitioner recalls the case of a doctor who conducted MTP on a 17-year-old unmarried girl and had to inform the police. The police would then call the girl and her single mother to the police station at night and land up at their house any time. The police picked up all the boys in the neighbourhood and questioned them. They were forced to reveal the father’s identity. When the girl and her mother were accused of immoral activities, the mother threatened the doctor with defamation suit. All that the doctor could say in reply was that he was sorry but he was merely obeying the law.

“While the intent of the Act is good for those who have been abused, there is a bigger problem. The women do not prefer to go to the service provider mandated by the law, but go to someone who will guard their secret. That is a danger,” says the healthcare practitioner.

“While PCPNDT and POSCO activists are working for women and mean well, we are all working in silos and do not see the collateral damage we are creating. We have to see how it is impacting contraception, abortion and sex education. How can we be more nuanced in our approach? Can we take the cut-off age of consent little lower, like making it 16 as it was earlier?” asks Dr Nozer Sheriar.

Anubha Rastogi too says that all MTPs are being viewed from the angle of being sex selective for which there is no supporting data and non-availability of MA pills has become a concern when sex of the foetus cannot be determined in the first trimester. Moreover, due to mandatory reporting under POSCO, many doctors are refusing treat to a minor seeking MTP, forcing them to access unsafe methods.

“These women who are coming to us are from low socio-economic backgrounds and do not understand the gravity of the situation. They don’t know that termination is not allowed after 20 weeks. Irrespective of the congenital malformation, legally you cannot terminate it. It is anguishing for the mother and the family, along with a huge financial burden, to raise such children. What do we do with those women?” he asks.
In case of young adolescent girls, by the time they come to know of pregnancy it is already 20 weeks. Dr Anand believes that where such a pregnancy cannot be continued, termination must be allowed.
“We never considered termination of pregnancy with major abnormalities as MTP; rather these were obstetric interventions done in the best interests of the women. Unfortunately after this went to court, a lot of practitioners have now been hesitant to do what we have always done before,” adds Dr Sheriar. 

15.6 mn
Abortions took place in India

3.4 mn
Abortions obtained in health facilities

Facility-based abortions were surgical

11.5 mn
Medication abortions done outside of health facilities

0.8 mn
Abortions outside of health facilities using methods other than medication abortion that were probably unsafe

Surgical abortions

Abortion took place in public sector facilities

Abortion in private sector facilities

1% approx
All abortions are late abortions in most countries

Source: Lancet Global Health 2018

Anubha Rastogi, advocate and women’s rights activist, also admits that cases which go to court for permissions increases the confusion. Procedures which were earlier performed by doctors under the MTP Act now suddenly require court permissions. This has resulted in doctors refusing to take any chance and insisting on court orders. “Only a handful of women have been able to get permissions from the court. A vast majority is unable to access the legal system and is not accessing safe and legal abortion services. Instances of pitting the doctors against the lawyers in court are creating more confusion as they speak different languages,” she says. 
In 2017, after the case of a 10-year-old rape survivor reached the court, the supreme court directed the central government to establish permanent medical boards in all states to assess time-sensitive cases and provide swift decisions on abortion petitions. 
But, medical boards are not formed in most states and where they are formed they do not meet on time.  “There will be delay where others are making important decisions for your life. For a 13-year-old girl for whom pregnancy is a risk to her life why should she have to go to court to seek permission to terminate? It’s a grandstanding on the part of the court and partly it is misunderstanding. It has to be the woman, her circumstances and her doctor and not to be judged by everyone else,” he says.
Dr Anand says that the JJ Hospital is a referral centre and after they get such a case a committee has to be constituted, which takes time. 
Responding to a parliamentary question in February 2018, minister of state for health Ashwini Kumar Chaubey had said that permanent medical boards have been formed in Delhi, Maharashtra, Tamil Nadu, West Bengal, Madhya Pradesh, Odisha, Tripura, Andhra Pradesh and Goa. However, policy advocates and health activists say that they have not been able to get in touch with any doctor of medical boards who have taken decisions based on the verdicts given.
Way forward
Dr Anand underlines the need to make sex education part of the curriculum after class IV. This will reduce the number of cases, especially of girls coming for abortion after 20 weeks of gestation, whereas what was required merely post-coital (emergency) contraception.
Dr Sheriar adds, “Comprehensive abortion care means prevention, entitlement and access to unconditional safe abortion. It is about respect, dignity, entitlement and rights. Since the present system obliviously is not working, we have to look for a change or an out-of-the-box solution. Women need it, women want it and a large number is accessing it anyway. Now we have to see what we can do to assist them, especially in the public sector. While we have a generous and great law, we need to adapt it to time.” 
(This article is published in January 30, 2019 edition)



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