Abortion: It’s every woman’s right to choose
Last year, in what is considered a landmark judgment, the Supreme Court ruled that individual privacy is a “guaranteed fundamental right”. The nine-judge bench ruled that the right to privacy is comprised in the right to life and liberty guaranteed in Article 21 of the Constitution. This judgment will have significant implications for the protection of citizens’ personal freedom against intrusions by the State. While the furore about privacy and its breach began with the linking of Aadhaar numbers with various programmes, the judgment addressed several other issues that the bench believed came under the ambit of privacy. Recognising a woman’s prerogative to make decisions about her health and body, the bench ruled that “there is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as guaranteed under Article 21. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.” The judgment further states that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”
An extremely progressive and far-reaching judgment, the Supreme Court’s ruling is commendable given the realities on the ground where women are often denied the right to make decisions about their reproductive health. Abortion – a key reproductive choice - is not a right in India. A woman cannot walk into a health facility and demand an abortion with no questions asked. In fact, abortion is provided to her solely at the discretion of the medical provider under certain conditions defined by the Medical Termination of Pregnancy Act, 1971, which include substantial risk to the woman’s life or to her physical or mental health, substantial risk to the life of the foetus, pregnancies resulting from contraceptive failure in case of married women, and pregnancies resulting from rape.
Moreover, if a woman wants to terminate her pregnancy in the first trimester, the law requires that she get the consent of one medical practitioner. For terminating a pregnancy second trimester onwards, she needs the consent of two medical practitioners. This is particularly difficult for a woman in remote locations where it can often be challenging to find even one medical practitioner.
Additionally, women in India still experience provider bias, especially if they are unmarried and seek an abortion. Contrary to the provisions of the MTP Act, many providers also continue to ask for the husband’s consent before performing an abortion, thus undermining a woman’s choice to make that decision herself.
According to the latest estimates published in the December issue of The Lancet, in 2015, a staggering 15.6 million abortions occurred in India. Of these 15.6 million abortions, 73% were sought outside health facilities. While unsafe abortions in the country have reduced significantly, about eight lakh women still resort to unsafe means to end an unwanted pregnancy.
In light of the judgment on privacy, a multi-pronged approach needs to be adopted to ensure that no woman resorts to unsafe means and methods to terminate a pregnancy because she is unable to access safe abortion services. At the policy level, the Medical Termination of Pregnancy Act, 1971, must be amended to allow women to receive abortion on request, which, in turn, could increase access to safe abortion care.
This should simultaneously be supported by efforts to build awareness and educate women and the community on their sexual and reproductive health and rights (SRHR), including their right to access safe abortion care. More importantly, we must sensitise our healthcare providers and implementers of the law to recognise a woman’s right to reproductive choice, privacy and dignity and to provide services free of bias and judgment.
While the right to privacy is not absolute and is subject to reasonable restrictions, it is nonetheless a fundamental right, not a statutory or a common law right. The State should take steps to ensure that a woman’s right to reproductive choices is mainstreamed and embedded in the public health agenda. They must urgently reassess and amend the laws that impact sexual and reproductive health and rights (SRHR) in India, especially the MTP Act.
If a woman so chooses to, she should be able to access abortion on request at any point within the legal gestation limit.
It must be ensured that SRH services and policies, including those for abortion, are designed in a manner that takes into account a woman’s reproductive choice, protects her privacy and dignity and enables her to lead a full and productive life.
Soli Sorabjee, Former Attorney General of India
The views expressed are personal