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Inside JGU 2021 - Issue 2 (February)

CJLS Releases Comprehensive Report on Access to Abortion in India

The Centre for Justice, Law and Society (CJLS), Jindal Global Law School, undertook a comprehensive empirical study of the district-wise availability of specialist doctors (obstetrician/gynaecologists, paediatricians and radiologists) across all Indian states and union territories. This study covered the time from 2015 to 2019 and found that there is an abysmal shortage of doctors and healthcare facilities in India.

The purpose of this study was to closely analyse the shortage of specialists in the country and thereby explore the feasibility of setting up Medical Boards as proposed in the Medical Termination of Pregnancy (Amendment) Bill, 2020. The Bill proposes the constitution of Medical Boards consisting of at least three specialist doctors along with other members as designated by the state or union territory. These Boards will determine whether a pregnancy that has advanced beyond 24 weeks can be terminated if the foetus is diagnosed with ‘abnormalities’.

On average, Indian states and UTs recorded a shortfall of 80% in obstetricians and gynaecologists, making the setting up of functional Medical Boards practically impossible. Some states such as Arunachal Pradesh, Meghalaya, Mizoram and Sikkim record a shocking 100% shortfall of paediatricians. In rural north India, there is on average an 84.2% shortfall in obstetricians and gynaecologists, 68.76% shortfall in paediatricians, and 74.5% shortfall of radiologists. Rural south India fares similarly, with 57.2% shortfall in gynaecologists and obstetricians, 61.4% shortfall in paediatricians and 68% shortfall in radiologists. In Scheduled Areas also, there is an acute shortfall of specialists.

Medical Boards were never envisaged in the Medical Termination of Pregnancy Act in 1971 and the law makes no mention of any third party authorisation for abortion. These Boards are unconstitutional and violate the fundamental rights of pregnant persons by subjecting them to multiple invasive examinations and causing unnecessary delays in the termination process. The right to terminate a pregnancy should vest with the pregnant person and Indian jurisprudence has established this through cases such as Puttaswamy v. Union of India, Navtej Johar v. Union of India and Joseph Shine v. Union of India where the Supreme Court recognised the rights to privacy, dignity, equality, and sexual and reproductive autonomy. These bureaucratic authorisation requirements have also been recognised as major barriers to accessing safe and legal abortion services under international law.

Prof. Dipika Jain, the lead author of the study, said: “The MTP Bill is not set in a rights-based framework and Medical Boards are draconian and invasive as they strip away autonomy from the pregnant person. Our study indicates a severe lack of doctors across India and this will make the setting up of Boards unfeasible. Even if the Boards are set up, pregnant persons who are in remotest areas of the country will incur many costs in travelling and this will add to their financial burden. This legal reform will make access to abortion more challenging for many people, especially those from marginalised groups.”

The human rights violations caused due to the denial of accessible healthcare services will be exacerbated by the invasive and prolonged authorisation processes of Medical Boards. Thus, it is imperative that the Government sends the MTP Amendment Bill to the parliamentary Standing Committee for further deliberation with multiple stakeholders to ensure that it a rights-based legislation.

The report ‘Medical Boards for Access to Abortion Untenable: Evidence from the Ground’ can be accessed here.