Accessing Reproductive Care: Across Socio-Economic Differences

Women are not a homogenous group, we hail from different socio-economic background. Within a group of women, there are sub-categories. What the title of this article hints at is that within the category of women, we are further bifurcated into women failing from rural and urban areas.

This geographical demarcation either limits or enhances their access to most welfare policy measures. Our means may vary. How we measure access to welfare services will inevitably vary. What lies at the heart of this debate is whether the distinction granted to women based upon their marital status with regard to abortion care is arbitrary or not. As we have witnessed from Hobbs vs. Jackson (a judgment by the Supreme Court of America) denying abortion care does not eliminate abortions; it only eliminates safe abortions. In the absence of safe abortions, necessity will crave unsafe abortions that will only lead to a higher rate of female mortality. Presently, unsafe abortions are the third leading cause of maternal mortality in India according to a report by the United Nations Population Fund’s (UNFPA) State of the World Population Report of 2022. Between 2007-2011, the report states, 67 % of abortions in India were classified as unsafe with eight women dying from unsafe abortions every day.

There is no denying the fact that India is an affirmatively legislated country. Unlike countries such as the United States of America, Egypt, Jamaica and the Philippines, abortions have been legal in India since 1971 since the Medical Termination of Pregnancy (MTP) Act was promulgated. It is worth pointing out that majority of unmarried women seeking abortions are less than 20 years of age according to an article by Thangappah Radha Bai Prabhu, Institute of Obstetrics and Gynaecology & Government Hospital for Women and Children, Chennai, India. A report titled ‘Seeing the Unseen: The case for action in the neglected crisis of unintended pregnancy,’ highlights that one in every seven unintended pregnancies in the world occurs in India. Bearing this mind, the way forward is to work on an approach centred around reproductive rights that grants autonomy to women, regardless of their marital status. It is already commendable that a woman, who is not a minor, does not require the approval of her husband, partner or family provided she is of ‘sound mind’ should she seek to get an abortion. But despite this effort on behalf of the legislature, societal and cultural challenges persist in the way of a woman in a society like ours, that is deeply soaked in patriarchy. The stigma attached to unwanted pregnancies and consequent abortions remains the biggest obstacle for women to access reproductive care with ease.

Furthermore, Marginalized women, including but not limited to sex workers, HIV-positive women, tribal women, single women, and youth find it difficult to access abortion care. And a lack of access is what leads to unsafe abortions. At this point in time, we must acknowledge that data indicates an association between unsafe abortion and restrictive abortion laws. When compared to places like Europe, where abortion is not only legal but the use of contraceptives is high, we see the lowest abortion rates in the world. In countries like Belgium, Germany, and the Netherlands, the rate is below 10 per 1000 women aged 15 to 44 years. In contrast, in Africa, Latin America, and the Caribbean, where abortion laws are perhaps the most restrictive with use of contraception alarmingly lower, the rates range from the mid-20s to 39 per 1000 women. In this context, the World Health Organisation (WHO) highlights that the average maternal mortality rate is three times higher in countries with more restrictive abortion laws (223 maternal deaths per 100,000 live births) when compared to countries with less restrictive laws (77 maternal deaths per 100,000 live births).The UNFPA further states girls between the ages group of 15 and 19 were at the highest risk of dying from an abortion-related complication. It is here that we must understand the link unintended pregnancies, low levels of education and income levels, especially for younger women and girls.

The recent Supreme Court judgment in X vs. Principal Secretary, Health and Family Welfare Department, Govt.of NCT of Delhi is a welcome move as it now allows the inclusion of unmarried woman also within the ambit of Rule 3B of the Medical Termination of Pregnancy Rules 2003 to terminate their pregnancy under clause (b) of sub-section (2)Section 3 of the MTP Act, for a period of up to twenty-four weeks. The petitioner in the present petition was an unmarried woman whose pregnancy rose from of a consensual relationship and hence was not covered by any of the clauses under the MTP Rules, 2003. It is worth remembering that unintended pregnancies, and subsequent abortions, leading to higher mortality rates for women are intimately intertwined with the holistic development of the country. As recently reported, India has slipped to rank 140th among 156 countries in the World Economic Forum’s Global Gender Gap Report 2021, becoming the third-worst performer in South Asia. However, when deciphering India’s performance on the above index, we must bear in mind that the Global Gender Gap report is a measure of gender gap on four parameters, namely: economic participation and opportunity, educational attainment, health and survival, and political empowerment, which makes the aforementioned areas crucial for India to advance towards Sustainable Development Goals (SDG) in the next few years.

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Let us one minute consider what would have happened if we did not extend this right to unmarried women? An article by the Indian Express states 45 per cent of all abortions remain unsafe. Categorising it as a public health emergency, the article says seven million women a year globally die in unsafe abortions, costing an estimated $553 million per year in treatment costs alone, further contributing to a significant share of all maternal morbidity, which is around 4.7–13.2% of all maternal deaths. A survey was conducting among 549 unmarried women between the age group of 15–24 who had obtained an abortion in 2007–2008 at one of 16 clinics run by the non-governmental organisation in the states of Bihar and Jharkhand. This survey articulating the experiences of unmarried young women in India who seek to terminate an unintended pregnancy by Shveta Kalyanwala, A. J. Francis Zavier, Shireen Jejeebhoy and Rajesh Kumar, explains the socio-economic differences in background characteristics, and the obstacles that persist in obtaining an abortion for women who had an abortion in the first trimester as compared to those who did so in the second trimester.

Two studies, by the Guttmacher Institute, highlight that women who live in rural areas (and those who did not receive support from their partners, those with low education levels or those who had non-consensual encounter) had an increased likelihood of having a late abortion in their second trimester. At the same time we also have to understand why women, unmarried or married, may be compelled to seek abortion after the first trimester and other decisions making factors that contribute to a late abortion.. The study reports that only 22% of respondents were aware, that abortion is legally available to unmarried women in India. Accordingly, women were more likely to be aware of this if they had a high school education and if they had a first-trimester abortion rather than a second-trimester procedure. But that is not where the buck stops. Perhaps the most profound line from the judgment  to have stayed with me long after reading it is that: ‘Women may undergo a sea change in their lives for reasons other than a separation with their partner, detection of foetal “abnormalities”, or a disaster or emergency. They may find themselves in the same position (socially, mentally, financially, or even physically) as the other categories of women enumerated in Rule 3B but for other reasons.’ This is a recognition of the fact that there may be a change in a woman's material circumstance and her freedom of choice must be placed on a premium.

It is important to remember that the statute (the MTP Act) did not make the distinction, but the Rules did and the rule has to be compliant with the statute just how a statute has to be compliant with the constitution. The judgments states that the interpretation of a subordinate legislation should be consistent with the enabling Act so as to give effect to the purpose and object of the enabling Act. It is also worth noting that 13% of all young women (adolescents) in developing countries begin childbearing. Three-quarters of girls have a first birth at age 14 and younger had a second birth before turning 20, and 40 % of those with two births went on to have a third birth before turning 20. Half of the girls with a first birth between ages 15-17 had a second birth before turning 20. Cognisant of such cases, the judgment states that ‘minor girls may (due to their tender age) be unaware of the nature of abuse the abuser or rapist is subjecting them to which may lead the guardian of minor girls to belatedly discover the fact of the pregnancy, necessitating the leeway granted by Rule 3B.’

The idea is to improve availability of abortion care in both the formal and informal sectors, so that access to abortion steadily improves, likely becoming safer as a result. However, a number of hurdles continue to prevent full access to legal abortion services and lead some women to resort to unsafe abortions. Second-trimester abortion is a vital component of high-quality abortion care, and the former shortfall in access to such terminations is a barrier that was likely to vulnerable women the hardest—those who are unable to seek earlier abortion because of poverty, difficulty traveling or lack of agency—as well as women who discover fetal anomalies or who develop health complications later in pregnancy. Keeping this mind, the judgment highlights the impact of continuance of an unwanted pregnancy on a woman's physical or mental health and that she should  be able to take into consideration various social, economic, and cultural factors operating in her foreseeable environment. Linking right to reproductive autonomy with the right to bodily autonomy, the judgment reaffirms that ‘a mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy’ and this is why we must applaud and celebrate this small victory towards greater autonomy and reproductive care for women.

 Aaliya Waziri is an advocate practicing at the High Court of Delhi. The views expressed are the author's own.