Artwork by Kirstie Bones for amplifier.org
Right to abortion is recognized in the Indian constitution under Right to Privacy and personal liberty under Right to life. Hence, India, even though does not have ideal reproductive laws, has an ideal spirit of liberalization inculcated in its Constitution.
On March 25, India imposed a nationwide lockdown due to the COVID-19 pandemic. And on April 14, The Ministry of Health and Family Welfare (MoHF&W) released a list of services ensuring provisions of essential services during COVID-19 pandemic. Safe abortions, even though made it to the list of essential services, have not been easily accessible.
The entire country is under an ever-extending lockdown and movement is restricted on all fronts. A person in need of an abortion is not a patient and doesn’t have a prescription to show to the authorities as a reason for travelling. Public transport services are not available. It’s almost impossible for the poor and unprivileged to make the journey to the clinical facilities. There are also various restrains on visits to health clinics for abortion and other family panning methods due to paranoia and fear of contracting the infection.
If this is also somehow overcome, the health facilities are stretching their limits. Most of the government hospitals and some private ones have either been completely dedicated to COVID-19 cases or have a significant amount of beds dedicated for it. There has been a decline in operations being performed all around the country. Recently, the United Nations Population Fund (UNFPA) had stated that the emergency response to the pandemic translates to the possibility of sexual and reproductive health services being diverted to deal with the outbreak, contributing to an increase in the number of unsafe abortions and the need for contraception.
The unfulfilled need for contraceptives has persisted because of inadequate supply of contraceptives locally and also, because of the Indian stigmatization. India has also forced clinics operated by Marie Stopes International, the largest provider of family planning services in India outside of the public sector to close.
Another situation worth mentioning is that of an unintended conception; accidental or without knowledge thereof. Regular checkups are not feasible and during this time, when only one person of the family is allowed to go out for buying essentials, a pregnancy test kit or an emergency pill will never make it to the grocery list.
As an addition to this, women in India also have to face the stigma attached to seeking abortions in the case of single women.
Further, the lockdown has been a catalyst in the growing of domestic violence in disturbed households. According to the WHO, violence against women tends to increase during emergencies or epidemics. Sensing the rise in tension, The National Commission for Women launched a WhatsApp number (7217735372) to report cases of domestic violence on an emergency basis. An addition to the online complaint links and emails which are also operational. UN Women Executive Director- Phumzile Mlambo-Ngcuka put out a statement calling the violence against women and girls “a shadow pandemic” and rightly so.
The process of abortion is time-sensitive and it cannot be handled with even an ounce of postponement without fatal repercussions. The Foundation of Reproductive Health Services India analyzed that due to the pandemic there will be an increase of 2.95 million unintended pregnancies, 8,44,483 live births, 1.04 million unsafe abortions and 2,165 maternal deaths. This shocking data is the result of non-liberal laws that completely ignored the possibility of such situations and did not provide women with the necessary assistance in the time of need.
The MTP Act is the governing legislation for abortions in the Indian law. There have been various attempts to introduce changes into the archaic act but in the history of 49 years, only two amendments have transpired. The recent one being passed in the last two months. Even though appreciable, there is much to be desired in the fight for ideal reproductive rights and a woman’s autonomy over her decision of abortion. Various sectors have been left out while making provisions and many are clashed.
Primarily, India lacks the sufficient amount of trained medical practitioners to take care of its growing abortion requirements. This leads to pregnant women opting for unsafe abortion procedures, posing risk to their health and life. Medical assistants and additional practitioners should be trained for providing oral pills for inducing safe abortion as suggested in the amendment of 2014. Every day, around the world more than 500 women die during pregnancy and childbirth and India constitutes to 20% of that amount, due to the absence of skilled birth attendants, emergency procedures and unsafe abortions.
There are no provisions laid down to deal with the situation where marital rape happens under the decree of judicial separation. As of now, neither can the husband be convicted for rape nor can the wife opt for legal abortion. Further, the act doesn’t have the provision of providing abortion of pregnancy caused by marital sexual offences such as, bigamy, and adultery.
The act does not take into account the IPC Amendment of 2013 that held sexual activity not amounting to rape punishable as it does not give a woman the right to terminate the pregnancy caused by this act.
Unlike before, when women used to approach the court for help to ask for abortion in special conditions, there is a break from that practice because a person with a non-legal background cannot approach the court literally and has no idea how the court proceedings are carrying on in this lockdown. Without basic understanding of the process, people are unable to use this alternative to its full extent, especially the poor and the illiterate.
In cases of Suchita Srivastava v. Chandigarh Admin and Devika Biswas v. Union of India, the Supreme Court stated a woman’s reproductive autonomy to be her fundamental right to privacy. It also held that it’s the woman’s decision alone to decide whether to have or not have a child without any intervention of a third party or the state. But, unfortunately, we have seen no significant change in the MTP Act along the line of these judgements.
The MTP act creates a barrier of paranoia for the minors opting for abortion. It conflicts with the POSCO Act. The MTP act while allows minors to get abortion with the consent of their legal guardian, the POSCO act legally obligates the doctors attending to such abortions to report these cases to the legal authorities. This makes the minors hesitate from opting safe abortions and visit quacks, defeating the whole purpose of the MTP act by putting the reproductive health of a lot of young women at risk.
In Sushil Kumar v Usha, the wife got the fetus aborted in accordance with the provisions of MTP Act without her husband’s consent. The husband filed for divorce on grounds of cruelty. This reveals that the provisions of MTP Act and Hindu Marriage Act are in conflict.
In April, MoHF&W issued guidelines for telemedicine to be practiced during the lockdown. At present, the Government of India allows only over-the-counter medicines to be e-prescribed, apart from a few exceptions. But there no mention of reproductive health services which was highly disappointing. This opportunity could have been used wisely to prescribe safe abortion pills to women in need all over the country following the path of Germany and UK.
During the lockdown, there have been various significant judgements passed by high courts all over India which have been an applaudable step and should be taken as an example for liberalization in India.
In April, a petition seeking an urgent assistance ,the Delhi High Court also directed the central and the state government of Delhi to ensure women from COVID-19 hotspots, needing maternity care, be given immediate attention during the lockdown. The hearing took place through video conferencing in which the bench of Justices Hima Kohli and Subramonium Prasad ordered the Delhi government to allow pregnant women to also use the helpline facilities put in place for senior citizens.
On 8 May, the Bombay High Court permitted a 16-year-old rape survivor to undergo medical termination of her 24-and-half-week pregnancy after her father filed a petition. The order was passed via a videoconference hearing.
The Rajasthan High Court in May, directed the state government to frame guidelines ensuring that women who become pregnant due to rape are provided timely legal and medical assistance if they seek an abortion, under the terms of the MTP Act. They also said: “If an application for termination of pregnancy is submitted by the guardian of the survivor to the appropriate authority within the stipulated period of 20 weeks as provided by the MTP Act, it shall be processed forthwith and a suitable decision shall be taken thereupon within three days from the date of submission thereof.”
These judgements even though quite appreciable but should be taken with a grain of salt. This should be an inspiration for more exclusive abortion- related legislation to come into play for the evolution of the country into one which provides much better sexual and reproductive healthcare; with special importance to abortion provisions.
“This new lack of access isn’t going to go away quickly”. There is an urgent need to realize that maybe COVID-19 might change the worldly affairs permanently and understand that abortion is not a “crime” but instead a major issue of personal liberty and privacy. Change must be achieved on multiple fronts. Firstly, towards ensuring the implementation of all norms to facilitate abortions health care institutions across the country. Secondly, towards making the act more liberal by making new amendments which will address the problems faced by the women of the country; both married and unmarried.
Enabling Delivery of Essential Health Services during the COVID 19 Outbreak: Guidance note https://www.mohfw.gov.in/pdf/EssentialservicesduringCOVID19updated0411201.pdf
 Nirandhi Gowthaman, ‘Women are finding it difficult to access abortion care, an essential service during lockdown’. May 6 (2020) available at: https://yourstory.com/herstory/2020/05/women-difficult-access-abortion-lockdown-essential-service
 Poonam Muttreja, ‘OPINION: Covid 19 And Reproductive Rights Of Girls And Women’. Amnestry International (April 6 2020) available at: https://amnesty.org.in/opinion-covid-19-and-reproductive-rights-of-girls-and-women/
 Marie Stopes International, In the shadow of the COVID-19 pandemic, 2020, https://www.mariestopes.org/covid-19/stories-from-the-frontline/.
 Ibid 4
 Poonam Pradhan Saxena, “Abortion as a ground for divorce under Hindu Law”, 29 JILI 423 (1988).
 Swati Deshpande, ‘Bombay high court lets teen rape survivor abort 24-week fetus’. Times of India. https://timesofindia.indiatimes.com/city/mumbai/bombay-hc-lets-teen-rape-survivor-abort-24-week-fetus/articleshow/75653461.cms
‘Ensure Timely Aid To Rape Survivors For Abortion: Rajasthan High Court’ NDTV. https://www.ndtv.com/jaipur-news/ensure-timely-aid-to-rape-survivors-for-abortion-rajasthan-high-court-2222316
Kayla Epstein, ‘’I see a danger in returning to a pre-Roe world:’ Abortion advocates view coronavirus-era restrictions as a dark sign of what could come’. Business Insider. https://www.businessinsider.in/politics/world/news/i-see-a-danger-in-returning-to-a-pre-roe-world-abortion-advocates-view-coronavirus-era-restrictions-as-a-dark-sign-of-what-could-come/articleshow/75763587.cms